Kerrison v Melbourne City Council

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FEDERAL COURT OF AUSTRALIA

Kerrison v Melbourne City Council [2014] FCAFC 130

Citation: Kerrison v Melbourne City Council [2014] FCAFC 130
Appeal from: Muldoon v Melbourne City Council [2013] FCA 994
Parties: SARA LOUISE KERRISON v MELBOURNE CITY COUNCIL, CHIEF COMMISSIONER OF POLICE, STATE OF VICTORIA and ATTORNEY GENERAL FOR THE STATE OF VICTORIA
File number: VID 1105 of 2013
Judge(s): FLICK, JAGOT & MORTIMER JJ
Date of judgment: 3 October 2014
Catchwords:

CONSTITUTIONAL LAW – Implied freedom of political communication – whether enforcement of Council local laws and regulations that prohibited certain conduct in public gardens effectively burdened implied freedom of political communication

HUMAN RIGHTS  – Charter of Human Rights and Responsibilities Act 2006 (Vic) – s 38(1) – whether making of Council local laws was incompatible with human rights as set out in the Charter – whether actions of Council officers undertaken pursuant to local laws and regulations were incompatible with human rights

PRACTICE AND PROCEDURE – Representative proceeding – whether primary judge erred in exercising discretion pursuant to r 9.21 of Federal Court Rules 2011 (Cth) to make orders that proceeding not continue as representative proceeding – factors relevant to exercise of discretion
Legislation:

Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 3, 4, 7, 15, 16, 28,29, 30, 31, 32, 33, 36, 38, 39
Commonwealth Constitution
Counter-Terrorism Act 2008 (UK) c 28 ss 62, 63, Sch 7
Crimes Act 1958 (Cth) ss 458, 461, 462
Crown Land (Reserves) Act 1978 (Vic) s 13
Human Rights Act 1998 (UK) c 42 s 6(1)
Interpretation of Legislation Act 1984 (Vic) s 38
Judiciary Act 1903 (Cth) ss 39B(1A)(b), 78B
Local Government Act 1989 (Vic) ss 111, 118, 224
Subordinate Legislation Act 1962 (Vic)
Subordinate Legislation Act 1994 (Vic) ss 3, 21, Parts 2, 2A

Atomic Weapons Establishment (AWE) Aldermaston Byelaws 2007 para 7(2)(f)
Melbourne Parks and Gardens (Joint Trustee Reserves) Regulations (1994) (Vic) regs 18, 21, 32, 33, 34
Melbourne City Council Activities Local Law 2009 cll 1.11, 2.11, 4.6, 5.4, 14.1, 14.12, 14.13, 14.14, 14.15, 14.16, 14.17, 14.18, 14.21, 14.22, 14.23, 14.24
Federal Court Rules 2011 (Cth) r 9.21

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Counsel for the First
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Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
Attorney-General (SA) v Adelaide City Corporation (2013) 249 CLR 1; [2013] HCA 3
Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493
Bank Mellat v Her Majesty’s Treasury (No 2) [2014] AC 700; [2013] UKSC 39
Bare v Small [2013] VSC 129
Coleman v Power (2004) 220 CLR 1; [2004] HCA 39
Commissioner of Taxation v Consolidated Media Holdings Ltd (2012)…

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Details
Case
[2014] FCAFC 130
Decision Date

CaseChat Overview and Summary

In Kerrison v Melbourne City Council, the case before the court involved the enforcement of local laws and regulations by the Melbourne City Council that prohibited certain conduct in public gardens. The appellant, Kerrison, challenged the legality of these laws and regulations on several grounds, including whether they effectively burdened the implied freedom of political communication and whether they were incompatible with human rights as outlined in the Charter of Human Rights and Responsibilities Act 2006 (Vic). The court also considered whether the primary judge had correctly exercised his discretion to prevent the proceeding from continuing as a representative action under the Federal Court Rules 2011 (Cth). The appellant, who was not issued with any notices under the Local Law or given any directions under the Regulations, argued that the proceeding should proceed in a representative capacity on behalf of all protesters. The respondents, however, opposed this, arguing that the appellant lacked standing to represent others in the proceeding.

The court addressed several legal issues in this case. Firstly, it examined whether the enforcement of the Council's local laws and regulations effectively burdened the implied freedom of political communication. Secondly, it assessed whether the making of these laws and the actions of Council officers pursuant to them were incompatible with human rights as set out in the Charter. Lastly, the court considered whether the primary judge had correctly exercised his discretion under r 9.21 of the Federal Court Rules 2011 (Cth) to prevent the proceeding from continuing as a representative action. The court found that the appellant did not have standing to bring the proceeding in a representative capacity, as she was not issued with any notices or directions under the Local Law or Regulations, and had not been arrested during the protests. The court held that the appellant's lack of standing meant that she could not challenge the actions of Council officers in relation to the 150 notices to comply on behalf of other protesters. The court also found that the primary judge had correctly exercised his discretion to prevent the proceeding from continuing as a representative action.

The court dismissed the appeal and ordered that the appellant pay the respondents' costs of and incidental to the appeal. It also set strict limits on any future applications to vary or set aside the orders and any responding submissions. The court emphasised the importance of adhering to the pre-appeal case management efforts and not raising new issues during oral submissions in an appeal. The case highlights the significance of standing and the need for clarity in the issues raised in a proceeding, particularly in cases involving representative actions and human rights challenges.

Orders

Orders of the court

1. The appellant has leave to rely on the further amended notice of appeal, in the form filed on 17 June 2014.

2. Leave is refused to the appellant to add proposed grounds 6A and 8A to the further amended notice of appeal.

3. The appeal is dismissed.

4. The appellant pay the respondents’ costs of and incidental to the appeal.

5. Any application to vary or set aside Order 4 is to be made on or before 10 October 2014, supported by written submissions limited to 3 pages.

6. Any responding submissions are to be filed and served by 17 October 2014, limited to 3 pages for each party.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

We will deal with the provisions of the Charter of Human Rights and Responsibilities Act 2006 (Vic) in the context of our discussion of the Charter issues. 4. THE COURSE OF THE TRIAL AND A SUMMARY OF THE PRIMARY JUDGE’S CONCLUSIONS Initially, the appellant was not a party to this proceeding. The sole applicant was Mr Muldoon. Mr Muldoon was a postgraduate student who became involved in Occupy Melbourne after attending a meeting in October 2011. The evidence before the primary judge revealed that Mr Muldoon was present at some of the protests in Treasury Gardens and in Flagstaff Gardens. It was common ground at trial and on appeal however that he was not issued with any notices under the Local Law, nor given any directions under the Regulations, nor was he arrested during any of the protests. At the time the application was issued (in November 2011) only one notice to comply under the Local Law had been issued and the application related only to that one notice. No enforcement action had by that stage been undertaken in Flagstaff Gardens pursuant to the Regulations. The proceeding was commenced and continued by way of application and affidavit. The use of this process contributed in our opinion to the significant lack of clarity at trial about what was in issue between the parties, and how the appellant and Mr Muldoon put their cases. As senior counsel for the appellant described it, the case “evolved” before the primary judge, such that by the time his Honour reserved there was a fourth further amended application which encapsulated the relief sought by the applicants. The respondents to the application were the Council, the Chief Commissioner of Victoria Police and the State of Victoria. The Attorney-General of Victoria intervened in the proceeding. There were many arguments before and during the appeal about the issues which could legitimately be raised by the appellant on the appeal. In some respects, the terms of the further amended notice of appeal did not assist the resolution of these issues. Further, the adoption of the mode of trial by application and affidavit means that, in resolving the matters which are legitimately before this Court on appeal, there must be a particular focus on the terms of the relief sought by the appellant at trial, and how the applicants’ arguments were developed by way of submission to support that relief. Mr Muldoon sought to bring the proceeding in a representative capacity. The applicants’ final submissions before the primary judge described that capacity in the following way:The Applicants have brought the Application in a representative capacity under r 9.21 of the Federal Court Rules 2011 (Cth) on behalf of all of the Protestors. It is not necessary for this purpose that all (or even some) of the Protestors know that the Application has been brought on their behalf. The persons whom the Applicants seek to represent have a common interest in the question whether the declaratory and injunctive relief sought by the Applicants ought to be granted. Thus, to avoid multiplicity of proceedings and the efficient determination, once and for all, of the controversies raised by the Application, the Application should proceed as a representative action in the manner identified.

Ratio Decidendi

Legal Principle Established

The appellant submitted that leave to include proposed ground 6A should be granted because the point raised is purely a legal one and involves no new evidence.5.3 Consideration of proposed ground 6A Insofar as the enforcement activities specified in paragraph 4(c) are concerned, proposed ground 6A is misconceived. The enforcement activities described in ground 4(c) were directed at the appellant. The issue of the appellant’s standing to take proceedings on behalf of others, accordingly, does not arise in respect of the conduct the subject of paragraph 4(c). Insofar as the enforcement activities specified in paragraph 3(b) are concerned, being the “actions”, said to be “individual or systemic”, taken by Council officers against people other than the appellant in relation to or in reliance on the 150 notices to comply, leave should be refused. First, the grounds in the further amended notice of appeal filed on 17 June 2014 are relevantly ambiguous. The grounds contain no reference at all to the standing issue or which grounds might depend on a finding contrary to that of the primary judge on standing. There is no express contention that the 150 notices to comply should be found invalid. Ground 3(b) is ambiguous because it refers to “the” notices without identifying whether this refers to all 150 notices or a subset. The ambiguity is exacerbated by the fact that ground 6 is limited to a challenge to the order that the proceeding not continue as a representative proceeding and is linked to ground 7 which contends that primary judge erred in failing to hold that 67 notices issued to protesters other than the appellant in sole reliance on cl 4.6 of the Local Law were invalid. Otherwise, there is no indication of which grounds depend on the appellant succeeding on her representative proceeding argument. Whatever the appellant might have intended, it is by no means clear that by ground 3(b) the appellant was challenging the actions of Council officers in relation to all 150 notices to comply, by reason of incompatibility with the rights under the Charter. Second, the respondents construed the further amended notice of appeal in this way. They were encouraged to do so by the further fact that the appellant’s principal written submissions and reply submissions in respect of the appeal do not deal with the issue of standing in the context of the service of notices to comply on the protesters. Nor do the submissions deal with the primary judge’s restriction (at [191]) of the issues for determination in the proceeding as a result of having found the appellant had no standing. Given the confined way in which the representative proceeding issue was raised in grounds 6 and 7, the appellant could not prosecute ground 3(b) without standing to do so. The issue of standing was not raised by the appellant at all until oral submissions during the hearing of the appeal. The respondents should not reasonably be expected to deal with issues raised for the first time during oral submissions in an appeal heard over three days in respect of a first-instance decision which considered numerous issues resulting in a judgment of 468 paragraphs. The effect of permitting the appellant to do so would be to set at naught the pre-appeal case management efforts directed at this matter.