Horsman v Chief Executive Officer, City of Greater Geraldton
[2014] WASC 289
•14 AUGUST 2014
HORSMAN -v- CHIEF EXECUTIVE OFFICER, CITY OF GREATER GERALDTON [2014] WASC 289
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 289 | |
| 14/08/2014 | |||
| Case No: | CIV:2007/2014 | 28 JULY 2014 | |
| Coram: | PRITCHARD J | 28/07/14 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | BARRY STANLEY HORSMAN CHIEF EXECUTIVE OFFICER, CITY OF GREATER GERALDTON |
Catchwords: | Application for interlocutory injunction Balance of convenience does not favour grant Whether damages likely to be adequate remedy |
Legislation: | Local Government Act 1995 (WA) |
Case References: | Anderson Formrite Pty Ltd v Baulderstone Pty Ltd (No 7) [2010] FCA 921 Armitage v Gainsborough Properties Pty Ltd [2011] VSC 419 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 BIS Cleanaway (trading as CHEP) v Tatale; Brambles (trading as CHEP) v Tatale [2007] NSWSC 378 Bunnings Group Ltd v CHEP Australia Ltd [2011] NSWCA 342 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Gaba Formwork Contractors Pty Ltd v Turner Corporation Ltd (1991) 32 NSWLR 175 Horsman v M G Kailis Pty Ltd [2009] WASC 166 Pisano v Health Solutions (WA) Pty Ltd [2012] WASC 84 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
CHIEF EXECUTIVE OFFICER, CITY OF GREATER GERALDTON
Defendant
Catchwords:
Application for interlocutory injunction - Balance of convenience does not favour grant - Whether damages likely to be adequate remedy
Legislation:
Local Government Act 1995 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff : In person
Defendant : Mr D P Gillett
Solicitors:
Plaintiff : In person
Defendant : McLeods Barristers & Solicitors
Cases referred to in judgment:
Anderson Formrite Pty Ltd v Baulderstone Pty Ltd (No 7) [2010] FCA 921
Armitage v Gainsborough Properties Pty Ltd [2011] VSC 419
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57
BIS Cleanaway (trading as CHEP) v Tatale; Brambles (trading as CHEP) v Tatale [2007] NSWSC 378
Bunnings Group Ltd v CHEP Australia Ltd [2011] NSWCA 342
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148
Gaba Formwork Contractors Pty Ltd v Turner Corporation Ltd (1991) 32 NSWLR 175
Horsman v M G Kailis Pty Ltd [2009] WASC 166
Pisano v Health Solutions (WA) Pty Ltd [2012] WASC 84
- (This judgment was delivered extemporaneously on 28 July 2014 and has been edited from the transcript.)
1 PRITCHARD J: This is an application by Mr Horsman made by notice of originating motion dated 21 July 2014. It is an application for an interlocutory injunction for orders restraining the City of Greater Geraldton (the Council) from dealing with various items, namely a Ford prime mover, a 45-foot refrigerated trailer, a 40-foot sea container and contents, and a portable car hoist (the goods).
2 The basis for the application was said to be that Mr Horsman is the owner of the goods, apart from the contents of the 40-foot sea container which were said to belong to another person, Ms Grace Tandoc. Mr Horsman claimed that the goods had been retained by the Council unlawfully and without any justification, and he sought an interlocutory injunction to prevent the Council from further dealing with those goods.
3 For the reasons that I will outline in a moment, I have formed the conclusion that the application for the injunction should be refused. In these reasons, I deal with the following matters:
1. The facts;
2. Principles in relation to the grant of interlocutory injunctions;
3. Whether there is a serious question to be tried;
4. The balance of convenience;
5. Whether damages would be an adequate alternative remedy; and
6. Conclusion.
4 In support of his application, Mr Horsman relied on an affidavit sworn by him on 22 July 2014.
5 The Council was represented and opposed the application for an interlocutory injunction and relied on two affidavits: first, an affidavit of Mr Neil Ferridge, sworn 24 July 2014; and a supplementary affidavit of Mr Neil Ferridge, sworn 25 July 2014.
1. The facts
6 This is a dispute which has a long history going back to 2012. The essence of the dispute is that the goods were situated in a thoroughfare running parallel to Boyd Street and perpendicular to Anderson Street in Geraldton. It is a thoroughfare that is depicted on diagram number 49027 and which was gazetted in the Government Gazette of Western Australia on 16 March 1984, which refers to:
A strip of land 10 metres wide widening at its commencement, commencing at the southwestern side of a surveyed road (Anderson Street) and the easternmost southeastern corner of Lot 27 of Victoria Location 8160 (Land Titles Office Diagram 49027) and extending as delineated and marked R.O.W. on Land Titles Office Diagram 49027 southwestward along the southeastern boundaries of that lot and Lots 28 and 29 both of Location 8160 (Diagram 49027) to terminate at the southernmost southwestern corner of the last mentioned lot.
7 In 2012, on various dates, it came to the attention of Council officers, including Mr Ferridge, that the goods had been placed in the thoroughfare. The Council officers apparently formed a view that the location of the goods in the thoroughfare constituted an obstruction of the thoroughfare. Requests were made to Mr Horsman to remove the goods that were in this position.
8 In October 2012 the goods in the thoroughfare included the prime mover, two unregistered semi-trailers and a sea container. Later, one of those semi-trailers was removed and the hoist to which I have referred was placed in the thoroughfare. Despite requests to remove the goods and the issue of a formal notice to remove the goods in November 2012, Mr Horsman declined to remove the goods from the thoroughfare. Mr Horsman's position all along has been that none of the goods obstructed any other people from using the thoroughfare.
9 The failure to remove the goods appears to have prompted the Council to take action to remove the goods itself. Prior to doing that, as I have said, a formal notice was issued to Mr Horsman in November 2012 requiring him to remove the goods from the thoroughfare. The goods were removed by the Council on 11 January 2013. Mr Horsman was notified of the removal and impoundment of the goods by letter dated the same date.
10 Over the ensuing months, various pieces of correspondence passed back and forth between Mr Horsman and the Council in relation to whether the goods could be returned and what costs might be associated with the return of those goods which would need to be paid by Mr Horsman before the goods could be returned to him. Eventually, the Council gave notice that if the goods were not collected and the costs associated with their impoundment paid, it would sell the goods.
11 The first notification to this effect took place on 16 April 2013 when the Council's solicitors advised that if the goods were not collected and costs paid by 30 April 2013, then they would be sold. Further correspondence ensued over subsequent months in relation to whether the goods might be collected by Mr Horsman and the costs associated with impoundment paid. All of that came to no avail.
12 By 21 March 2014, almost one year later, the position remained much the same, that is, the goods remained in the Council's possession and the costs associated with their impoundment had not been paid. A further letter was then written to Mr Horsman by the solicitors for the Council on 29 May 2013 advising that if the goods were not collected and the costs associated with impoundment paid within 14 days of that letter, then the Council would proceed to dispose of the goods. Mr Horsman did not collect the goods, nor pay the costs associated with the impoundment, by that time and the Council proceeded to take steps to sell them.
13 On or before 17 June 2014, the Council called by advertisement for tenders for the sale of the goods. It received various tenders and accepted a number of tenders in respect of individual items comprising the goods. It was not in dispute that the prime mover has since been paid for and collected by one of the third party tenderers. The remaining goods, are now the subject of agreements to sell, but have not been yet conveyed to the third parties in question.
14 Mr Horsman's case is that the Council has had his goods and has sold them, or has attempted to sell them, without his authority. It appears to be his case that this constitutes alleged conversion of his goods by the Council without any lawful authority to do so. He disputes that the Council ever had any authority to impound the goods in the first place. In particular, he says that the thoroughfare was not, in fact, being used as a thoroughfare or maintained as one by the Council. He also says that there was no obstruction of the thoroughfare so as to justify any action by the Council to impound the goods.
2. Principles in relation to the grant of interlocutory injunctions
15 The principles in relation to the grant of an injunction were set out by Beech J in Horsman v M G Kailis Pty Ltd,1 and I referred to them in Pisano v Health Solutions (WA) Pty Ltd.2 The principles are well-established.
16 First, a plaintiff must show that there is a serious question to be tried or must make out a prima facie case in the sense that if the evidence remains as it is, there is a probability that at the trial of the action the plaintiff would be entitled to relief.
17 Secondly, the plaintiff must show that if the injunction is not granted, the plaintiff will suffer irreparable injury for which damages will not be an adequate compensation.
18 Thirdly, the plaintiff must demonstrate that the balance of convenience favours the grant of an injunction.3
19 Insofar as the prima facie case in question is concerned, it is enough to show that there is a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending the trial. How strong the likelihood of success needs to be depends upon the nature of the plaintiff's asserted rights and the practical consequences likely to flow from the orders sought.4
20 Whether there is a serious question to be tried and whether the balance of convenience favours the grant of an injunction are not wholly independent inquiries. Rather, all of the factors must be considered together. Nevertheless, it will be convenient in the discussion which follows to deal separately with each of the various considerations which must be taken into account in determining whether an interlocutory injunction should be granted.
3. Whether there is a serious question to be tried
21 I turn, first, to whether Mr Horsman has shown that there exists a serious question to be tried - that is, whether he has made out a prima facie case. I should mention again at this stage that the prime mover has been sold and is in the possession of a third party. In those circumstances, it is futile to consider any injunctive relief being granted in respect of the Council's dealing with the prime mover itself.
22 I should also mention at this point as I have already noted that the goods contained in the sea container were said to be owned by Ms Tandoc. Ms Tandoc has not appeared as a party in the present application for injunctive relief, and there has been no indication by Mr Horsman that he has any authority to bring an action on behalf of Ms Tandoc. For present purposes, however, it is not necessary to further deal with that issue as the application for injunctive relief can be determined on other grounds.
23 The action Mr Horsman appears to contemplate against the Council is an action in conversion. The relevant principles in relation to the grant of conversion have been discussed in several recent cases including by Graham J in Anderson Formrite Pty Ltd v Baulderstone Pty Ltd (No 7),5 by Almond J in Armitage v Gainsborough Properties Pty Ltd,6by McDougall J in BIS Cleanaway (trading as CHEP) v Tatale; Brambles (trading as CHEP) v Tatale,7 and by Allsop P (with whom Giles and Macfarlane JJA agreed) in Bunnings Group Ltd v CHEP Australia Ltd).8
24 In Anderson Formrite Pty Ltd, Graham J observed that:9
The essence of conversion is a dealing with a chattel in a manner repugnant to the immediate right of possession of the person who has the property or special property in the chattel. It may take the form of the disposal of the goods by way of sale, or pledge or other intended transfer of an interest followed by delivery, of the destruction or change in the nature or character of a thing, as for example, pouring water into wine or cutting the seals from a deed, or of an appropriation evidenced by refusal to deliver or other denial of title. An intent to do that which would deprive 'the true owner' of his immediate right to possession or impair it may be said to form the essential ground of the tort (per Dixon J, as his Honour then was, with whose observations Starke J agreed in Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 at 229).
25 In this case, as I understand it, Mr Horsman's position is that the Council has no authority to impound his goods or, more particularly, to sell them to third parties. The Council's position has been that it is lawfully entitled to impound the goods and to sell the goods as a result of the operation of various provisions of the Local Government Act 1995 (WA) and associated regulations. It is appropriate to very briefly mention those.
26 Under section 3.39(1) of the Local Government Act:
An employee authorised by a local government for the purpose may remove and impound any goods that are involved in a contravention that can lead to impounding.
27 According to Mr Ferridge's affidavit dated 23 July 2014, he has authority from the Council to remove and impound such goods that are involved in a contravention that can lead to impounding.
28 Section 3.37(1) of the Local Government Act makes clear that the regulations may prescribe any contravention of a regulation or local law made under the Act to be a contravention that can lead to impounding. Regulation 29(1) of the Local Government (Functions and General) Regulations 1996 (WA) provides that:
(1) A contravention of a regulation or local law made under the Act can lead to the impounding of goods involved in the contravention if -
(a) it occurs in a public place; and
(b) either -
(i) the presence of the goods -
(I) presents a hazard to public safety; or
(II) obstructs the lawful use of any place;
or
(ii) where the regulation or local law prohibits or regulates the placement of the goods, the goods are located in a place contrary to that regulation or local law.
30 Alternatively, the Council relies on cl 4.7(1) of the City of Greater Geraldton's Parking and Parking Facilities Local Law 2012, which provides that:
A person shall not park a vehicle in a public place so as to cause an obstruction.
31 As I have said, Mr Horsman disputes that the thoroughfare was, in fact, a thoroughfare or a public place for the purposes of these provisions. Having regard to the gazettal of the thoroughfare to which I have already referred, it appears that that argument may have some difficulties. A more pertinent question, however, concerns the meaning of the word 'obstructs,' in reg 6(1) of the Local Government (Uniform Local Provisions) Regulations, the word 'obstruction' in cl 4.7(1) of the Parking and Parking Facilities Local Law, and the word 'obstructs' in reg 29(1) of the Local Government (Functions and General) Regulations.
32 As I understand the position, the word 'obstructs' is not defined in any of those pieces of subsidiary legislation. The ordinary meaning of the word 'obstruct', according to the Macquarie Dictionary, is 'to block or close up, or make difficult of passage, with obstacles, as a way, road, channel, or the like' or 'to interrupt, make difficult, or oppose the passage, progress, course, etc of', or 'to come in the way of or shut out'.
33 The Council submits that an obstruction occurs in the present context simply by virtue of the goods being located in the thoroughfare. There seems to be a tension between that submission and the ordinary meaning of the word 'obstruct' according to the dictionary meaning to which I have just referred. The dictionary meaning appears to contemplate that the obstruction will have a practical impact on the passage of other users of the thoroughfare in question.
34 As to that, there was little evidence in relation to the matter from the Council's side, but Mr Horsman's position was that there was no obstruction of the thoroughfare by the presence of the goods. He noted that the thoroughfare is a 10-metre wide thoroughfare, and indicated that other vehicles were able to pass by the goods when they were located in the thoroughfare.
35 There was no evidence in relation to the actual obstruction, in a direct sense, in Mr Ferridge's affidavit, but it is very clear from the notices that he sent to Mr Horsman that he considered that the goods were causing an obstruction of the thoroughfare. For present purposes, it is not possible for me to resolve this evidentiary issue. It suffices to say that, on the very limited evidence before me, I am prepared to accept that there has been the establishment of a prima facie case by Mr Horsman of a question as to whether the Council, in fact, had lawful authority to remove the goods in the first place.
36 It is not necessary, for present purposes, to asses much further the strength or otherwise of that prima facie case because the question of whether interlocutory injunctive relief should be granted turns far more on the other considerations to which I now refer.
4. The balance of convenience
37 In this case, Mr Horsman contends that he has been deprived of the use of his goods by the Council, and will now be deprived of them permanently by the sale of those goods by the Council if the injunctive relief is not granted, the prime mover already having been sold by the Council.
38 On the other hand, there are now third parties who have interests in the goods by virtue of their reaching an agreement for the purchase of those goods from the Council. Those third parties might need to be heard from before injunctive relief could be granted, but given the conclusion that I have formed in relation to the granting of the interlocutory injunction, it is not necessary to do so.
39 In addition, in relation to the balance of convenience, I take into account that this is a very long-standing dispute. The goods were seized by the Council well over one year ago. There have been a number of items of correspondence passing back and forth between Mr Horsman and the Council and, more recently, by solicitors instructed by Mr Horsman and the Council. However, in that time, there have been apparently no steps taken by Mr Horsman either to commence proceedings against the Council to challenge its entitlement to impound the goods, or for other civil proceedings such as conversion in respect of the goods; or, alternatively, to pay the Council's costs of impounding and to obtain the return of the goods and then to seek to commence proceedings thereafter. Having made that observation, I have heard Mr Horsman's submissions in relation to his financial position and appreciate that there may well have been practical reasons for that. Nevertheless, the matter has been a long-standing dispute.
40 Finally, I take into account the fact that, in his submissions this morning, Mr Horsman acknowledged that he has a business for haulage and carriage of goods, and that he has been able to use other vehicles in respect of that business apart from the prime mover and trailer which were seized.
41 To complete the consideration of the other factors relevant to the grant of injunctive relief, I turn to consider whether damages would be an adequate remedy.
5. Whether damages would be an adequate alternative remedy
42 Mr Horsman's submission was that he was concerned that, if he were to litigate in respect of the return of the goods or the seizure of the goods by the Council, all of his losses would not be adequately compensated were he to succeed in that litigation. In particular, he appeared to be concerned about the loss of income and other related losses that he claims has been incurred as a result of the long detention of the goods by the Council.
43 In this respect, I refer to the observations made by Graham J in Anderson Formrite Pty Ltd.10 His Honour referred to the decision of Giles J in Gaba Formwork Contractors Pty Ltd v Turner Corporation Ltd,11 where Giles J said in respect of conversion that:
In an action in conversion, the plaintiff claims damages for the wrong done to him by the interference with his goods. The wrong is the act of conversion, and the remedy is a personal remedy. ...
The normal measure of damages in conversion is the value of the goods converted at the date of conversion (Mercer v Jones (1813) 3 Camp 477; 170 ER 1452; Henderson & Co v Williams[1895] 1 QB 521; Solloway v McLaughlin [1938] AC 247; Caxton Publishing Co Ltd v Sutherland Publishing Co [1939] AC 178; General and Finance Facilities Ltd v Cooks Cars (Romford) Ltd [[1963] 1 WLR 644]), together with damages for any consequential loss flowing from the conversion and not too remote to be recoverable in law: Re Simms; Ex parte Trustee [1934] Ch 1; General and Finance Facilities Ltd v Cooks Cars (Romford) Ltd.
44 It is not necessary to draw any conclusions in relation to the likely extent of any losses that could be recovered by Mr Horsman in an action for conversion of the goods. It suffices to observe that I am not persuaded that this a case where, were Mr Horsman to pursue legal action against the Council for conversion of the goods and succeed, any damages awarded would not be an adequate compensation for the losses he may have suffered as a result of that conversion.
6. Conclusion
45 I turn now to draw some conclusions in relation to all of the matters that I have taken into account. On one hand, I have accepted that there is a prima facie case established by Mr Horsman in relation to a possible conversion of his goods by the Council. But the strength of that case would very much ultimately turn on evidence in relation to the obstruction of the thoroughfare by the goods, in conjunction with a conclusion in relation to the meaning of the word 'obstruct' in the relevant provisions.
46 Outweighing that consideration, however, in my view, are the balance of convenience considerations, and the adequacy of damages as an alternative relief. In this case, the considerable delay in terms of any attempts to resolve the dispute between Mr Horsman and the Council, the position of third parties who now have an interest in the goods the subject of this dispute, and the fact that were Mr Horsman to succeed in an action against the Council, damages would be likely to be an adequate remedy, all militate, in my view, against the grant of an interlocutory injunction in the present circumstances.
47 Accordingly, I have refused the application made by Mr Horsman.
1Horsman v M G Kailis Pty Ltd [2009] WASC 166 [90].
2Pisano v Health Solutions (WA) Pty Ltd [2012] WASC 84.
3 See Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, 153; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 217 - 218.
4 See Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57, 81 - 84.
5Anderson Formrite Pty Ltd v Baulderstone Pty Ltd (No 7) [2010] FCA 921 [313] - [321].
6Armitage v Gainsborough Properties Pty Ltd [2011] VSC 419 [30].
7BIS Cleanaway (trading as CHEP) v Tatale; Brambles (trading as CHEP) v Tatale [2007] NSWSC 378 [38] - [44].
8Bunnings Group Ltd v CHEP Australia Ltd [2011] NSWCA 342 [117] - [146].
9Anderson Formrite Pty Ltd v Baulderstone Pty Ltd (No 7) [2010] FCA 921 [313].
10Anderson Formrite Pty Ltd v Baulderstone Pty Ltd (No 7) [2010] FCA 921 [319].
11Gaba Formwork Contractors Pty Ltd v Turner Corporation Ltd (1991) 32 NSWLR 175, 177 - 178.
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