Kerrison v Melbourne City Council - [2014] FCAFC 130

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

Cases cited:

Date of hearing:

Date of last submission:

Place:

Division:

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Number of paragraphs:

Counsel for the Appellant:

Solicitors for the Appellant:

Counsel for the First
Respondent:

Solicitor for the First
Respondent:

Counsel for the
Second Respondent:

Solicitor for the
Second Respondent:

Counsel for the Third
Respondent:

Solicitors for the Third
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Counsel for the
Fourth Respondent:

Solicitor for the
Fourth Respondent:

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) 293 ALR 257; [2012] HCA 55
Commonwealth v Grunseit (1943) 67 CLR 58
Corporation of the City of Adelaide v Corneloup (2011) 110 SASR 334; [2011] SASCFC 84
Coulton v Holcombe (1986) 162 CLR 1
Federal Insurance Ltd v Wasson (1987) 163 CLR 303
Hansen v The Queen [2007] 3 NZLR 1; [2007] NZSC 7
Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4
House v The King (1936) 55 CLR 499
Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Minister for Industry and Commerce v Tooheys Ltd (1982) 60 FLR 325
Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34
Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4
Muldoon v Melbourne City Council (2013) 217 FCR 450; [2013] FCA 994
Muldoon v Melbourne City Council [2011] FCA 1306
Nicklinson v Ministry of Justice [2014] 3 WLR 200; [2014] UKSC 38
O’Flaherty v City of Sydney Council [2014] FCAFC 56
PJB v Melbourne Health [2011] VSC 327
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Queensland Medical Laboratory v Blewett (1988) 84 ALR 615
R v Oakes [1986] 1 SCR 103
Re Application under the Major Crimes (Investigative Powers) Act 2004 (2009) 24 VR 415; [2009] VSC 381
Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48
Sabet v Medical Practitioners Board of Victoria (2008) 20 VR 414; [2008] VSC 346
Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd (No 4) (2010) 268 ALR 108; [2010] FCA 482
Schubertv Wanganui District Council [2011] NZAR 233; [2011] NZHC 48
Sunol v Collier (No 2) (2012) 289 ALR 128; [2012] NSWCA 44
Sunshine Coast Broadcasters Pty Ltd v Australian Communications and Media Authority (2012) 209 FCR 518; [2012] FCA 1205
Tabernacle v Secretary of State for Defence [2009] EWCA Civ 23
Unions New South Wales v New South Wales (2013) 304 ALR 266; [2013] HCA 58
Vines v Djordjevitch (1955) 91 CLR 512
Wotton v Queensland (2012) 246 CLR 1; [2012] HCA 2

20-22 August 2014

22 August 2014

Melbourne

GENERAL DIVISION

Catchwords

271

Mr R Merkel QC with Mr C Lenehan, Mr E Nekvapil and Mr D Hume

Fitzroy Legal Service

Mr R Niall QC with Mr R Attiwill QC

Hunt & Hunt Lawyers

The Second Respondent submits to any order the Court may make save as to costs

Victorian Government Solicitor’s Office

Dr S Donaghue QC with Mr A Pound

Victorian Government Solicitor’s Office

The Fourth Respondent submits to any order the Court may make save as to costs.

Victorian Government Solicitor’s Office

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 1105 of 2013

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
SARA LOUISE KERRISON
Appellant

AND:
MELBOURNE CITY COUNCIL
First Respondent

CHIEF COMMISSIONER OF POLICE
Second Respondent

STATE OF VICTORIA
Third Respondent

ATTORNEY GENERAL FOR THE STATE OF VICTORIA
Fourth Respondent

JUDGE:

FLICK, JAGOT & MORTIMER JJ

DATE OF ORDER:

3 OCTOBER 2014

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
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.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL GENERAL DIVISION

VID 1105 of 2013

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
SARA LOUISE KERRISON
APPELLANT

AND:
MELBOURNE CITY COUNCIL
FIRST RESPONDENT

CHIEF COMMISSIONER OF POLICE
SECOND RESPONDENT

STATE OF VICTORIA
THIRD RESPONDENT

ATTORNEY GENERAL FOR THE STATE OF VICTORIA
FOURTH RESPONDENT

JUDGE:

FLICK, JAGOT & MORTIMER JJ

DATE:

3 OCTOBER 2014

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

THE COURT

1. THE APPEAL

This appeal concerns a proceeding commenced in November 2011 by Mr James Muldoon contending that certain actions of the City of Melbourne (the Council) against members of the Occupy Melbourne protest group were unlawful. In carrying out these actions the Council was assisted by Victoria Police, which explains the presence of the Chief Commissioner and the State of Victoria (the State) as respondents. The proceeding was commenced as a representative proceeding. On 21 March 2012, the first day of the trial, the present appellant, Ms Sara Kerrison, was joined as an applicant. Mr Muldoon withdrew from the appeal on 17 April 2014, leaving Ms Kerrison as the sole appellant.
On 1 October 2013 the primary judge ordered that the proceeding not continue as a representative proceeding and the application otherwise be dismissed (Muldoon v Melbourne City Council(2013) 217 FCR 450; [2013] FCA 994).
By a proposed further amended notice of appeal filed on 17 June 2014 the appellant contended that the primary judge erred on 10 grounds (with the eleventh ground relating to costs and consequential on the appellant succeeding with respect to one or other of the 10 substantive grounds). Written and oral argument proceeded on the basis of this further amended notice of appeal, and the Court indicated it would determine in its reasons for judgment whether to grant leave to the appellant to rely on that notice of appeal. Leave to rely on the further amended notice of appeal should be granted. The further amended notice of appeal was served during the pre-hearing management of the case (see further below). The respondents were able to deal with the proposed amendments in their written and oral submissions and did not oppose the appellant’s application for leave. The appeal was conducted by reference to the further amended notice of appeal. It would be inappropriate for leave to be refused in these circumstances.
We set out below a summary of the appellant’s grounds and a brief statement of our conclusions about each ground.
1.1 The constitutional issues
The provisions of:
(a)the Local Law on which the Council relied to serve protesters, including the appellant, with notices to comply and/or the statutory head of power under which the Local Law was made (s 111 of the Local Government Act 1989 (Vic), and
(b)the Regulations on which the Council relied to give oral directions to protesters, including the appellant, and /or the statutory head of power under which the Regulations were made (the Crown Land (Reserves) Act 1978 (Vic),
are constitutionally invalid because they impermissibly burden the implied freedoms of political communication and association under the Commonwealth Constitution (grounds 1, 4(a) and 4(b)).
We conclude that the basis on which the enforcement provisions of the Local Law are said by the appellant to differ from the valid substantive prohibitions does not give rise to any separate and impermissible burden on the implied freedom.
1.2 The Charter issues
The Council’s:
(a)making of the same provisions of the Local Law,
(b)enforcement activities under the notices to comply served under the Local Law, and/or
(c)enforcement activities under the Regulations,
were unlawful under s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) because those provisions are and those enforcement activities were incompatible with the human rights of freedom of expression, peaceable assembly and freedom of association in ss 15 and 16 of the Charter and were not demonstrably justified within the meaning of s 7(2) of the Charter or otherwise reasonably necessary (grounds 2, 3(a), 3(b) and 4(c)).
We conclude the making of the Local Law cannot be challenged under s 38(1) of the Charter. The challenge to the issuing of notices under the Local Law to persons other than the appellant is not determined in this appeal first because of the view we have taken about the correctness of the primary judge’s decision that the proceeding should not continue as a representative proceeding and second because the appellant should not be granted leave to challenge the primary judge’s finding that she did not have standing to bring such a challenge. We further conclude that the two enforcement activities under the Regulations involving Ms Kerrison were not carried out in a way which contravened s 38(1) of the Charter.
1.3 The notices issue
The three notices to comply under the Local Law served on the appellant are not notices within the meaning of the relevant provisions of the Local Law and were not validly issued (ground 5).
We conclude the notices were validly issued.
1.4 The representative proceeding issue
The proceedings should have been permitted to continue as a representative proceeding (ground 6).
We conclude the primary judge’s exercise of discretion under r 9.21 of the Federal Court Rules 2011 (Cth) to determine the proceeding should no longer continue as a representative proceeding is not affected by error. Given our finding, there is no occasion to reach a conclusion on the Council’s notice of contention about the primary judge’s decision under r 9.21.
1.5 The cl 4.6 notices issue
The 67 notices to comply issued to protesters other than the appellant in sole reliance on cl 4.6 of the Local Law should have been declared to be invalid on the same basis as notices issued to the appellant in reliance on cl 4.6 had been found by the primary judge to be invalid (ground 7).
We conclude the appellant cannot challenge these notices given this is not a representative proceeding and she has been found not to have standing to do so.
1.6 The cl 4.6 construction issue
The primary judge should not have construed cl 4.6 of the Local Law as including any goods that “may impinge upon the appearance of streets and public places” (ground 8).
We conclude that this issue does not properly arise on the appeal.
1.7 The sunset issue
The Regulations were not in force as they had been automatically revoked by the Subordinate Legislation Act 1962 (Vic) (ground 9).
This ground was abandoned during the appeal and will not be further considered.
1.8 The arrest issue
Section 458(1) of the Crimes Act 1958 (Cth) did not authorise the police to apprehend protesters in connection with the commission of an offence under s 224(8) of the Local Government Act (ground 10).
We conclude the appellant does not have standing to challenge the arrests of other protestors and the primary judge was correct to so find. The actions of the police officers were lawful in any event, and the appellant should not have leave to raise a new argument about the validity of ss 458(1) and 461 of the Crimes Act 1958 (Cth).
Before dealing with the grounds of appeal in more detail, it is convenient to set out the relevant facts about the Occupy Melbourne protest, the details of the statutory provisions in issue, and the reasoning of the primary judge which sets the context for the appeal.
2. THE OCCUPY MELBOURNE PROTEST
The primary judge’s findings about the Occupy Melbourne protest itself are not in dispute and are adopted for the purposes of the appeal, as recorded below. References in square brackets are to the reasons of the primary judge.
In November 2011 the Occupy Melbourne group occupied Treasury Gardens, and briefly, Gordon Reserve. In December 2011 the group occupied Flagstaff Gardens: [1].
The occupation was meant as a protest against economic inequality and the structures and operation of the present system of government. It is part of a worldwide movement which shares the same philosophy and method of protest: [2].
Occupy Melbourne was a protest against economic inequality that exists within Australian society and the world. It was also a protest against the existing structures and operation of government in Australia on the basis that they are overly influenced by large corporations and professional political parties, and that these organisations fail to represent the interests of ordinary citizens. Those who followed Occupy Melbourne believed that the Australian democratic processes are ineffective and need to be reformed. Occupy Melbourne intended to build a functional grassroots democratic form of governance in Australia: [28].
The primary mode of protest used by Occupy Melbourne was for protesters to maintain a continuous presence in public spaces. This mode of protest allowed the protesters to continually convey the political message to the public: [29].
The occupation of public space was part of the political message because it allowed the protesters to enact and demonstrate the alternative political and governmental structures the movement sought to promote for Australia. All decisions were made in public in a general assembly. Any person was entitled to attend and vote at the general assembly. It operated on a consensus decision-making model: [30].
In addition to the primary judge’s findings, the appellant emphasised on appeal, and we accept, that the Occupy movement and Occupy Melbourne utilised social media as a form of communication to distribute its messages and some content about the protests, and to facilitate communication with people who could not physically attend the protests.
3. THE STATUTORY PROVISIONS
3.1 Local Government Act
Section 111(1) of the Local Government Act 1989 (Vic) provides that:
A Council may make local laws for or with respect to any act, matter or thing in respect of which the Council has a function or power under this or any other Act.
In exercise of that power, in 2009, the Council made the Local Law, being the Melbourne City Council Activities Local Law 2009.
The Local Law applies to the Treasury Gardens and the Flagstaff Gardens.
Part 2 of the Local Law regulates behaviour in public places. The introduction to Part 2 states that:
This Part contains provisions which aim to protect the amenity of public places for all citizens by controlling behaviour in public places and by prohibiting persons from causing damage to public places or acting in a socially unacceptable manner.
Clause 2.11 is in these terms:
Unless in accordance with a permit, a person must not camp in or on any public place in a vehicle, tent, caravan or any type of temporary or provisional form of accommodation.
Part 4 of the Local Law regulates advertising and use of shopfronts and public places. The introduction to Part 4 states that:
This Part contains provisions which aim to enhance the appearance of streets and public places by controlling the placement of advertising signs in public places and on and between buildings and street art in, or within view from, a public place within the municipality and the placement of goods and the like in public places.
Clause 4.6 is in these terms:
Unless:
(a)in accordance with a permit; or
(b)to do so is specifically authorised by and in accordance with the Melbourne Planning Scheme or a planning permit issued under it,
a person must not place or erect a portable advertising sign or other thing in, on or over a public place or allow that to occur.
Part 5, dealing with street trading and other events, contains cl 5.4, as follows:
Unless in accordance with a permit, a person must not display or distribute to any person any handbill in or on a public place or allow that to occur.
Part 13 deals with permits and includes these provisions:
13.1Where in this Local Law a person is prohibited from doing a thing “unless in accordance with a permit”, a person who does the thing which is prohibited to be done without first obtaining a permit from the Council under this Part is guilty of an offence.
13.2The Council may grant a permit subject to such conditions as it thinks fit.
Part 14 concerns enforcement and includes these provisions:
Offences
14.1     A person who:
(a)       fails to comply with this Local Law; or
(b)       fails to comply with a condition of a permit; or
(c)       fails to do anything directed to be done under this Local Law; or
(d)       knowingly submits erroneous, inaccurate or misleading information in an application for a permit; or
(e)       refuses or fails to obey directions of an authorised officer to leave a public place where in the opinion of that authorised officer the person has failed to comply or is failing to comply with this Local Law; or
(f)       fails to comply with a sign erected by the Council,
is guilty of an offence.
Infringement notices
14.2     As an alternative to prosecution, an authorised officer may serve an infringement notice on a person who:
(a)       has done one or more of the things described in clause 14.1; or
(b)       is reasonably suspected of having done one or more of the things described in clause 14.1.
…
Notice to comply and directions
14.12An authorised officer may either orally or in writing direct a person to leave a public place if in the opinion of the authorised officer the person is failing to comply or has failed to comply with this Local Law.
14.13Either as an alternative or in addition to an infringement notice, an authorised officer may serve a Notice to Comply under this clause on a person who the authorised officer reasonably suspects to be in breach of this Local Law.
14.14A Notice to Comply under clause 14.13 must be in writing and in a form approved by the Council.
14.15A Notice to Comply under clause 14.13 may do one or more of the following things:
(a)       direct the person to comply with the Local Law;
(b)       direct the person to stop the conduct which constitutes the breach of the Local Law;
(c)       direct the person to deliver up to the authorised officer or to some specified person or some specified location any item or property of the person which constitutes the breach of the Local Law;
(d)       direct the person to remove or cause to be removed any item, goods, equipment or other thing that constitutes a breach of the Local Law;
(e)       direct the person to leave an area within the time specified in the notice that constitutes a breach of the Local Law.
14.16A Notice to Comply under clause 14.13 must specify the time and date by which the person specified in the Notice to Comply must comply with the directions in clause 14.15.
14.17The time required by a Notice to Comply under clause 14.13 must be reasonable in the circumstances having regard to:
(a)       the amount of work involved; and
(b)       the degree of difficulty; and
(c)       the availability of necessary materials or other necessary items; and
(d)       climatic conditions; and
(e)       the degree of risk or potential risk; and
(f)       any other relevant factor.
14.18A person served with a Notice to Comply under clause 14.13 must comply with a direction contained in the notice.
…
Power of authorised officer to confiscate
14.21Where a person owning or responsible for items, goods and equipment has ignored a direction from an authorised officer to remove them, the items, goods, equipment or other property or thing may be confiscated and impounded.

Relevant definitions in cl 1.11 include the following:
“Advertising sign” includes any letter, figure, symbol, device, poster, sign, banner or message used for notifying:
(a)       the existence of the sale or use of any goods or services; or
(b)       the holding of an event or function; or
(c)       the promotion of any person, company, organisation or thing.
“Authorised officer” means:
(a) a person appointed by the Council to be an authorised officer under section 224 of the Act; or
(b) upon the Council publishing a notice in the Government Gazette under section 224A of the Act, any police officer.
“Handbill” includes a placard, notice, book, pamphlet, paper and advertisement other than an advertisement affixed to any building abutting any road or public highway, but does not include a newspaper, magazine or book sold by a newsvendor or other person authorised by the Council nor any handbill containing material of an exclusively political nature distributed by hand to any person.
“Notice to Comply” means a notice given under clause 14.13 of this Local Law.
“Permit” means a permit granted under Part 13 of this Local Law.
“Place” when used as a verb includes allow to remain.
“Public place” has the same meaning as in the Summary Offences Act 1966 and, to the extent that it does not include the following, also includes:
(a)       any place prescribed by the Council as a public place, other than an interior part of a building which is not occupied by the Council or a public body unless that part has been prescribed by the Council;
(b)       any place to which the public whether upon or without payment for admittance have or are permitted to have access, but does not include a shopping centre;
(c)       any park, garden, reserve or other place of public recreation or resort;
(d)       any vacant land or vacant space adjoining any road;
(e)       any wharf, pier or jetty; and
(f)       a Council building.
3.2             Crown Land Reserves Act
Flagstaff Gardens is also reserved land under the Crown Land (Reserves) Act 1978 (Vic). Section 13(1)(a) of that Act provides:
(1)Where any land has been reserved under this Act-
(a)the trustees thereof or the Minister and the trustees (as the case may be) with the approval of the Governor in Council;
…
may make regulations for and with respect to-
…[ There are then 12 subject matters specified]
The Regulations, being the Melbourne Parks and Gardens (Joint Trustee Reserves) Regulations (1994) (Vic), were made under s 13(1)(a).
Relevant provisions of the Regulations include the following:
18A person must not in a Reserve, without the written consent of the Committee or Appointed Officer-
(a)use, erect or cause to be used or erected any booth, kiosk, tent or other temporary building or structure; or
(b)erect any temporary building, enclosure, tent or structure for public entertainment, exhibition or meeting purposes and charge for admittance.
21A person must not in a Reserve, without the written consent of the Committee or Appointed Officer, bring in or use any caravan, structure, tent, trailer or vehicle for camping purposes.
…
32
(1)The Committee or an Appointed Officer may issue a permit or consent for any purpose (for which consent is required under these Regulations).
(2)A permit or consent given under these Regulations authorises the holder to enter and use the Reserve for the purpose specified, for the period specified and subject to the terms, conditions and fees, consistent with these Regulations, as the Committee or an Appointed Officer may from time to time determine either generally or in a particular case.
(3)Where a person is in contravention of any condition of a permit or consent given by the Committee or Appointed Officer under these Regulations, the permit or consent may be cancelled or amended as required by the Committee or Appointed Officer.
33A person in a Reserve must comply with any reasonable direction of an Appointed Officer.
…
34
(1)An Appointed Officer may remove or cause to be removed any tent, caravan or other structure which –
(a) has been placed in a Reserve without written consent; or
(b) in the opinion of the Appointed Officer has been abandoned in a Reserve;
and store such property at an appropriate location.
3.3 Other
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.
In their written submissions filed prior to trial, the respondents objected to the applicants bringing the proceeding in a representative capacity. The objection was based on two grounds: non-satisfaction of the requirements as to “common interest” for the purposes of r 9.21(1) of the Federal Court Rules and, second, whether as a matter of discretion the proceeding should continue as a representative proceeding even if it did satisfy r 9.21(1).
The respondents also made arguments about the applicants’ lack of standing. While the respondents accepted Mr Muldoon (and, for that matter, subsequently Ms Kerrison) had standing to challenge the validity of the Local Law, Regulations and enabling legislation, they submitted there was no standing to challenge notices issued to anyone other than an applicant, nor to challenge action taken under the Regulations against anyone other than an applicant. The Chief Commissioner made a similar submission in relation to persons arrested, submitting only those who were arrested had standing to challenge the lawfulness of the arrests.
On the first day of the trial, an application was made to add Ms Kerrison, the current appellant, as a party. Ms Kerrison had been served with notices under the Local Law, and had been the subject of what came to be described in the trial, the submissions and the judgment as “enforcement activities” by both Council officers and Victoria Police. We will return to what is properly seen as encompassed by the term “enforcement activities” later in these reasons for judgment. Ms Kerrison’s joinder was obviously responsive to the submissions which had been made by the respondents about the standing of Mr Muldoon.
The primary judge reserved the questions of standing and whether Mr Muldoon and Ms Kerrison could bring the proceeding in a representative capacity, and dealt with them when judgment was delivered.
Shortly before the trial commenced, the High Court handed down the decision of Wotton v Queensland (2012) 246 CLR 1; [2012] HCA 2. On the basis of that decision the respondents and the Attorney-General challenged the jurisdiction of the Court to deal with the proceeding. The contention as to the jurisdiction concerned whether, based on some of the judgments in Wotton, it could be said the challenges to the Local Law and Regulations were claims “arising under the Constitution, or involving its interpretation” within s 39B(1A)(b) of the Judiciary Act1903 (Cth). This prompted some further amendments to the application by the applicants to challenge the enabling legislation for the Local Law and the Regulations, namely s 111 of the Local Government Act and s 13 of the Crown Land (Reserves) Act. The jurisdictional challenge was fully argued before the primary judge and his Honour found the Court had jurisdiction. There is no appeal from that finding.
Apart from the jurisdiction issue, the primary judge described (at [78] of his reasons) the other major issues in the proceeding, and his conclusions on them, in the following terms:
2. Whether the applicants may bring or continue the proceeding in a representative capacity.
The Court accepts the argument of the respondents that the proceeding should not continue as a representative proceeding.
3. Whether the Regulations were automatically revoked by operation of the sunset provisions in s 5(1) of the Subordinate Legislation Act 1994 (Vic) (the Subordinate Legislation Act).
The Court accepts the arguments of the respondents and the Attorney-General that the Regulations were not revoked at the time of the protest.
4. Whether the notices to comply were invalid on their face because their wording meant that they fell outside cl 2.11 and / or cl 4.6 of the Local Law.
The Court accepts the argument of the Council that five of the eight notices to comply issued to the second applicant were validly issued. The Court accepts the argument of the second applicant that three notices to comply issued to her, one on 18 November 2011 and two on 28 November 2011, were invalid.
5. Whether the impugned Local Laws and Regulations when read together with their enabling provisions were invalid because they infringed the implied freedom of political communication and association.
The Court accepts the arguments of the respondents and the Attorney-General that the provisions are valid.
6. Whether the impugned Local Laws and the Regulations were incompatible with the rights to freedom of expression or peaceful assembly or freedom of association under the Charter.
The Court accepts the arguments of the respondents and the Attorney-General that the impugned provisions are not incompatible with those rights under the Charter.
7. Whether the decisions of Council officers to issue the notices to comply or take the enforcement action infringed the implied freedom of political communication or were incompatible with the right to freedom of expression or the right of peaceful assembly or freedom of association under the Charter.
The Court accepts the arguments of the respondents and the Attorney-General that the decisions did not infringe the implied freedom of political communication and were not incompatible with those rights under the Charter.
8. Whether the arrests of protesters made by Victoria Police were unlawful.
The Court accepts the arguments of the Chief Commissioner that the arrests were lawful.
9. Whether the applicants should have leave to amend [2(c)] and [6(c)] of the Fourth Further Amended Originating Application.
The Court accepts the argument of the Council and the Attorney-General that the application to amend should be refused.
Insofar as the primary judge’s reasoning supporting these conclusions is challenged in relation to the grounds of appeal, we address that reasoning when dealing with the applicable ground of appeal.
5. FURTHER APPLICATION FOR LEAVE TO AMEND THE NOTICE OF APPEAL
5.1 The application for leave
The oral submissions for the appellant dealt with two issues during the hearing of the appeal, neither of which had been raised in the further amended notice of appeal or discussed in the appellant’s written submissions. The issues were the appellant’s standing to challenge the validity of the enforcement actions taken against persons other than the appellant under s 38(1) of the Charter and a contention that the notices to comply under the Local Law served on people other than the appellant were invalid on their face.
The respondents objected to the appellant raising grounds of appeal not contained in the further amended notice of appeal filed on 17 June 2014.
On 22 August 2014, the final day of the hearing of the appeal, the appellant filed in Court and sought leave to rely upon a second further amended notice of appeal containing two additional grounds as follows:
6A
In the alternative to ground 6, the Court erred in holding (at [189]) that the appellant had no standing to challenge the actions referred to in paragraph 3(b) and 3(c) above insofar as they were directed to persons other than the appellant.
8A
The Court erred in failing to find that the issue, threat to act upon and enforcement of each of the notices identified in the annexed table (marked [A]) were on their face ultra vires the powers conferred on an authorized officer under the Local Law on the basis that they were not authorized by the provisions of the Local Law and were invalid.
The appellant also filed a further written submission in support of the application for leave.
We consider that leave to amend the notice of appeal to include these two new grounds should be refused. Our reasons follow.
5.2 Circumstances relating to proposed ground 6A
The cross-reference to paragraph 3(c) in proposed ground 6A is in error. There is no paragraph 3(c) in the further amended notice of appeal. We assume this is an intended reference to ground 4(c).
Paragraph 3(b) in the further amended notice of appeal contends that the enforcement activities of the Council in serving notices to comply under the Local Law were unlawful by reason of incompatibility with the rights to freedom of expression, peaceful assembly and freedom of association in ss 15 and 16 of the Charter.
Paragraph 4(c) in the further amended notice of appeal contends that the enforcement activities of the Council described in certain paragraphs of the affidavits of the appellant were unlawful by reason of incompatibility with the same rights under the Charter. The relevant paragraphs of the appellant’s affidavits identify conduct consisting of: (i) the removal of a tent worn by the appellant, and (ii) oral directions given to the appellant to remove an “Occupy Melbourne” banner tied to the fence railings at Flagstaff Gardens.
At [188] and [189] of his reasons, the primary judge said:
The Council contends that the applicants have no basis upon which to challenge the notices to comply issued to protesters other than themselves, no basis upon which to challenge the enforcement action taken against protesters other than themselves, and no basis upon which to challenge the arrests of protesters other than themselves.
The applicants did not mount any substantial argument against these contentions of the Council concerning standing, but rather relied on the application to bring the proceeding as a representative action to answer the problem. This is understandable because there is no basis upon which the applicants can challenge the individual circumstances of these actions which were not directed to themselves. They have no special interest apart from the interest of any member of the public, and they suffer no individual damage or detriment arising from the actions taken against others: Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; [1980] HCA 53.
The appellant submitted that the primary judge was in error in that it had been argued before the primary judge that the appellant had a “special interest” in the enforcement activities taken against people other than herself because she was an integral part of the “Occupy Melbourne” protest and enforcement activities against one protester had an impact on the overall protest.
According to the appellant, it had always been intended to challenge all notices to comply and not merely those served on the appellant, as disclosed by paragraph 3.2.2 of the further amended notice of appeal. Paragraph 3.2.2 is one of the orders sought. It seeks a declaration of invalidity in respect of “each notice to comply contained in Annexure SK-2 and SK-3 to the affidavit of the Appellant affirmed 14 December 2011”. Those annexures contain 150 notices served on different people during the protest. These were the notices identified in a schedule to the fourth further amended application on which the applicants relied at trial.
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.
The appeal was listed before Mortimer J for directions on 10 June 2014. Her Honour directed the appellant to file and serve any application for leave to amend the notice of appeal by 4.00pm on 17 June 2014. During the directions hearing the legal representative of the appellant was advised by her Honour that, as the appeal had been fixed for hearing and the appellant could not then identify the proposed amendments, this was the appellant’s opportunity to regularise her notice of appeal and it would thereafter be “be highly unlikely, absent some extraordinary circumstances, that any further leave will be granted to amend”. While the respondents, despite their earlier objection, were willing to deal with this belated pleading, they maintained their objection to the appellant recasting her case yet again during oral submissions. The case management history of the appeal supports their objection. Directions are not made to be disregarded. To grant further leave in respect of proposed grounds 6A and 8A given the case management history of the matter would be inappropriate.
Third, there has been no adequate explanation from the appellant about the reason for the omission of proposed ground 6A from the further amended notice of appeal. The further submissions for the appellant handed up on the final day of the hearing of the appeal refer to the proposed ground being “omitted”, but how the proposed ground came to be omitted and when the appellant first realised that there had been an omission remains unknown.
5.4 Proposed ground 8A
Considerations of the same kind also weigh against the grant of leave to amend in respect of proposed ground 8A.
A separate issue of concern for proposed ground 8A is that, when analysed, the ground is entirely new to the appeal. As the Council pointed out, insofar as the appellant is concerned, the primary judge declared invalid the three notices to comply served on her in reliance on cl 4.6 of the Local Law (at [241]). The Council did not contend to the contrary in the appeal. The primary judge found that three other notices to comply served on the appellant in reliance on both cll 2.11 and 4.6 were valid (at [243]). Nothing in the further amended notice of appeal disclosed any challenge to that conclusion. In common with proposed ground 6A above, the structure and content of the further amended notice of appeal, in expressly limiting the challenge as set out in ground 5 (to the three notices served in reliance on cl 2.11) and the 67 notices as set out in ground 7 (being notices served in sole reliance on cl 4.6), the latter being dependent on the appellant succeeding on ground 6 (the representative proceeding issue), indicated that the appellant was not challenging the validity of all 150 notices on their face in the appeal.
The Council, moreover, pointed out the confined scope of the appeal in this regard in its written submissions filed on 11 August 2014. At paragraph 35(c) the Council noted that the appellant was not challenging in the appeal the three notices served on her in reliance on both cll 2.11 and 4.6. At paragraph 50 the Council noted that the construction of cl 4.6 of the Local Law was not in issue in the appeal for that reason, it being immaterial that “there may be other persons who received a notice under cl 4.6; such notices are not the subject of the appeal”.
Despite having had an opportunity to deal with these matters in submissions in reply dated 13 August 2014, the appellant said nothing to indicate to the contrary and made no attempt to clarify the issues she wished to raise until required to do so following the respondents’ objection to the oral submissions during the hearing of the appeal.
Further, the utility of the proposed amendment is doubtful. The appellant submitted that proposed ground 8A “does not lead directly to a declaration”. Rather, the appellant “asserts that the issue of any notice that was invalid on the basis of ground 8A was incapable of meeting the requirements of s 7(2) because it was not ‘under law’”. This is an abbreviated reference to the terms of the limitation in s 7(2) of the Charter that a “human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom…”. The appellant’s contention, as we understand it, is that any limit which is invalid because it is beyond the power of the relevant enabling legislation is necessarily outside the scope of s 7(2). However, this contention was not developed by the appellant in written submissions and is not dealt with at all in the respondents’ submissions for that reason. Nor is the contention apparent from proposed ground 8A, which makes no reference to s 7(2). The contention was mentioned, by way of assertion rather than argument, in the appellant’s oral submissions, but no more. Given that this largely unexplored contention underlies proposed ground 8A, and the contention raises potentially complex issues none of which have been given the service of considered argument by the parties, it is inappropriate for the appellant to be granted leave to raise this proposed new ground of appeal.
5.5 Conclusions about proposed grounds 6A and 8A
The appellant should not be granted leave to rely on proposed grounds 6A and 8A as set out in the second further amended notice of appeal. Accordingly, it is unnecessary to consider the substance of these grounds. The appeal proceeds on the basis of the primary judge’s findings on standing.
6. CONSIDERATION OF THE GROUNDS OF APPEAL
6.1 Identifying the “enforcement activities”
As we have noted above, the proceeding concerned the conduct of protests in two places: Treasury Garden and Flagstaff Gardens. The evidence revealed that the first respondent relied on the provisions of the Local Law, and issued notices to comply pursuant to cl 14.13 of the Local Law, at Treasury Gardens. When the protest moved to Flagstaff Gardens, the first respondent relied on the provisions of the Regulations to issue directions and to seize items.
Thus, the “enforcement activities” challenged by the appellant at trial and on appeal occurred in two different places under two different legislative regimes. It is an obvious proposition that the evidentiary basis for the challenges needed separately to be established. Since the appellant elected not to challenge the primary judge’s findings on the substantive prohibitions themselves, the appeal focussed on arguments connected with the enforcement of those prohibitions.
The “enforcement activities” relied on by the appellant for the purposes of challenge were opaquely identified. During the hearing of the appeal the Court asked the appellant to prepare a document which more precisely identified the activities impugned, the evidence relied on and the sources of power the appellant said were ineffective (for the various reasons outlined in her argument) to authorise these activities. The appellant produced a table, although its contents had some disconformities with the grounds of appeal and arguments.
At Treasury Gardens, the enforcement activities were said to be:
·The issue of each of the 150 notices to comply under cl 14.13 of the Local Law, those notices having been listed, with varying degrees of details, in a Schedule to the originating application (item 1 in the table, ground 3(b) of the further amended notice of appeal, cl 14.13 in the Local Law);
·The particular directions given in the notices to comply, which were separately identified as an enforcement activity (see item 5 of the table, and possibly ground 3(b) of the further amended notice of appeal, although it does not in terms challenge the directions in the 150 notices as enforcement activities, unless this is what is meant by “systemic” actions);
·The confiscation of the tent embassy (item 2 in the table, however this does not appear in the grounds of appeal at all); and
·A threat that the notices to comply would be enforced, said to be inherent in the issuing of each notice (item 6 of the table. This does not appear in the grounds of appeal and in our opinion even on a generous reading cannot be comprehended by ground 3(b) of the further amended notice of appeal).
At Flagstaff Gardens, the enforcement activities were said to be:
·The removal of a tent “worn” by Ms Kerrison (item 3 of the table, ground 4(c) of the further amended notice of appeal); and
·The removal of an “Occupy Melbourne” banner (item 4 of the table, ground 4(c) of the further amended notice of appeal).
We note that in the appellant’s outline of submissions before trial, which were handed up on the appeal, “two particular examples of unlawful enforcement” are given, the second being the “tent incident” with Ms Kerrison. The first, relating to a “tasking sheet” issued by Victoria Police during what was described as “Operation Dangle” was not pursued on appeal.
It is, however, important to note that in submissions before the primary judge, the removal of Ms Kerrison’s tent was principally framed as an issue about the unlawfulness of the actions of Victoria Police. The evidence shows, as we refer to below, that it was officers of Victoria Police who removed the tent from Ms Kerrison, with assistance from Council officers. The way in which the tent covering Ms Kerrison was removed — which was captured on video — reflected poorly on Victoria Police and Council officers. Before the primary judge, and at the end of the trial, the appellant and Mr Muldoon withdrew all of their case against the Chief Commissioner, and officers of Victoria Police, except for the part which flowed from the applicants’ succeeding on impugning the Local Law and Regulations, so that any arrests which depended on those laws would be unlawful. What that leaves for determination on the appeal concerning the lawfulness under s 38(1) of actions of Council officers in relation to the removal of the tent is discussed below at [218], but it is important to understand only some aspects of this event are in issue on the appeal.
It is clear from the terms of the fourth further amended originating application, set out at [22] of the primary judge’s reasons, that, first, the Aboriginal tent embassy incident in Treasury Gardens was not the subject of particular relief sought at trial and, second, there was no relief sought concerning the particular directions in each of the notices in the terms now formulated by item 5 of the table, nor formulated any other way.
The fourth further amended originating application did seek declarations in relation to “the issue, the threat to act upon, and the enforcement of each notice to comply”, on the basis that “such actions” were incompatible with the applicants’ rights under the Charter and so in contravention of s 38(1) of the Charter. As we have said above, the only ground of appeal which could possibly encompass the arguments which sat behind seeking this relief is ground 3(b) of the further amended notice of appeal. We do not consider that the concept of an “inherent threat” to enforce each notice was raised at trial in those terms. It is certainly not identified in the further amended notice of appeal as a particular error made by the primary judge, nor is any such argument discussed in his reasons. Accordingly, consistent with the conclusion we have reached that leave should not be granted to the appellant to raise additional grounds not contained in the further amended notice of appeal, we do not propose to consider this “inherent threat” argument as part of the enforcement activities which are the subject of the further amended notice of appeal.
Therefore, neither the tent embassy incident nor the “particular directions” in the notices, nor the “threat that the notice would be enforced” should be dealt with on the appeal as comprehended by the term “enforcement activities”, especially in relation to the appellant's claims under the Charter.
What can be considered on the appeal as “enforcement activities” are:
·Subject to our findings on ground 6A (that the appellants not be granted leave to raise the issue of standing to challenge all 150 notices as contravening rights under the Charter) and the representative proceeding issue, the actions of the Council officers taken in reliance on the 150 notices to comply under cl 14.13 of the Local law, those notices having been listed, with varying degrees of detail, in a Schedule to the originating application (item 1 in the table, ground 3(b) of the further amended notice of appeal);
·The removal of the tent worn by Ms Kerrison (item 3 of the table, ground 4(c) of the further amended notice of appeal); and
·The removal of an “Occupy Melbourne” banner (item 4 of the table, ground 4(c) of the further amended notice of appeal).
6.2 The representative proceeding issue (ground 6)
We deal with this ground first because, together with our refusal to grant leave to the appellant to challenge the primary judge’s conclusion on standing, it informs our approach to many of the other grounds of appeal. It is necessary to note a few matters at the outset of consideration of this issue.
First, although the primary judge ordered that the proceeding “not continue as a representative proceeding”, the question whether the proceeding should be constituted as a representative proceeding or not was in issue from the start (see the primary judge’s reasons at [136] - [138]). Until the first day of the hearing the sole applicant was Mr Muldoon. The Council maintained from the outset that as Mr Muldoon was not the subject of any enforcement action he could not claim the relief sought on behalf of others who were the subject of enforcement action. An application was made, apparently on the first day of the hearing, to join the now sole appellant, Ms Kerrison, as an applicant. Ms Kerrison, unlike Mr Muldoon, had been served with notices to comply under the Local Law and given oral directions under the Regulations.
The Council accepted that the appellant had standing to contend that the challenged provisions of the Local Law and Regulations were invalid and that the notices issued and directions given to her were invalid, but maintained that the proceeding should not be constituted as a representative proceeding and the appellant had no standing to challenge the validity of enforcement action taken against any other person. The primary judge, rather than ruling on this issue during the hearing, deferred the issue for consideration along with all other issues. The order the primary judge made, that the proceeding not continue as a representative proceeding, needs to be understood in this context.
Second, consideration needs to be given to the function of ground 6 in the context of the further amended notice of appeal. Grounds 1, 2, 3(a), 4(a) and (b), 5, 8 and 11 have nothing to do with the status of the proceeding as a representative proceeding or not. Ground 10 has its own difficulties, and is considered separately below. Otherwise, the representative proceeding issue is potentially relevant to grounds 3(b), 4(c) and 7. Grounds 3(b) and 4(c) relate to alleged breaches of the Charter. Ground 7 relates to the 67 notices served on persons other than the appellant in sole reliance on cl 4.6 of the Local Law. This context also has to be recognised given that the orders the appellant seeks involve the setting aside of the primary judge’s order that the proceeding not continue as a representative proceeding and a re-exercise by this Court of the discretion under r 9.21(2) of the Federal Court Rules.
The relevant rules provide as follows:
9.21
(1)       A proceeding may be started and continued by or against one or more persons who have the same interest in the proceeding, as representing all or some of the persons who have the same interest and could have been parties to the proceeding.
(2)       The applicant may apply to the Court for an order appointing one or more of the respondents or other persons to represent all or some of the persons against whom the proceeding is brought.
(3)       If the Court makes an order appointing a person who is not a respondent, the order has the effect of joining the person as a respondent to the proceeding.
…
9.22
(1)       An order made in a proceeding for or against a representative party is binding on each person represented by the representative party.
(2)       However, the order can be enforced against a person who is not a party only if the Court gives leave.
(3)       An application for leave under subrule (2) must be served personally on the person against whom it is sought to enforce the order.
(4)       A person who is served with a notice under subrule (3) may dispute liability to have the order to which the notice relates enforced against the person on the ground that facts and matters particular to the person entitle the person to be exempt from liability.
The primary judge noted at [141] that the appellant
… asserted the basis for the representative nature of the proceedings as follows:
REPRESENTATIVE ACTION
…
The Second Applicant sues on her own behalf and in a representative capacity under r 9.21 of the Federal Court Rules 2011 (Cth) on behalf of the Protesters who were purportedly served with a Notice to Comply, and on behalf of Protesters who were purportedly the subject of the enforcement activities under the Regulations as described above.
The primary judge continued:
142 “Protesters” was defined as:
Each person who has been a participant in one or more of the various assemblies constituting the Protest.
143 “Protest” was defined to mean:
The various assemblies of persons who have since 2 November 2011 gathered at the Treasury Gardens, Gordon Reserve and the Flagstaff Gardens, Melbourne, being the assemblies known as, and identified by the persons participating in them as, the Occupy Melbourne movement.
After examining the relief sought, the primary judge said that:
152 The Council accepted that the applicants had standing to challenge the validity of the impugned Local Laws and Regulations and the enabling Acts under which they were made.
153 The Council however argued that the applicants had no standing to challenge notices to comply and action taken under the Regulations against persons other than themselves. The Council contended that the attempt to sue in a representative capacity was the applicants’ way of avoiding their lack of standing. It submitted that the proceeding did not fulfil the requirements of r 9.21 of the Rules for a representative proceeding. Alternatively, the Council contended that the Court should order, as a matter of discretion that the proceeding not continue as a representative proceeding.
154 The Chief Commissioner submitted that the applicants had no standing to challenge the lawfulness of the arrests of other people as they had not been apprehended by Victoria Police themselves. Thirteen people were arrested during the course of the protests. The applicants were not arrested. The Chief Commissioner argued that the question of the lawfulness of any arrests was not appropriate for a representative action as the applicants, not having been arrested, had no community of interest with people who had been arrested.

At [156], the primary judge concluded (correctly) that:
The area of controversy was whether the first applicant and the second applicant and the respective representative group had the same interest in the determination of the validity of the notices to comply, the validity of the enforcement actions and the validity of the arrests.
His Honour continued as follows:
161 If the applicants’ challenges to the validity of the notices to comply, the enforcement actions and the arrests were concerned with the separate factual circumstances of each of these actions then the protesters and those against whom action was taken would not have had the same interest in a substantial legal issue in the proceeding.
162 It seems that the objection by the Council to the proceeding being constituted as a representative action was that the Council would need to mount a defence in respect of the particular circumstances of each notice and each act of enforcement. However, it became clear that the applicants’ challenges were pitched at a higher level of generality. Their argument focused on the description of the prohibited conduct in the notices and its disconformity with the conduct prohibited by cll 2.11 and 4.6. Similarly, in relation to the enforcement activities and the arrests, the applicants’ arguments involved a challenge based on the interpretation of the scope of the provisions but not on the detailed factual circumstances of each event.
163 At this level of argument the protesters had the same interest in the determination of the validity of the notices to comply, the enforcement activities and the arrests.
…
171 The reference to starting the proceeding against a person in r 9.21 is a reference to the time when a cause of action is commenced against a person. The operation of the rule is not restricted to the time when an application is first filed. The present case is a good illustration why this is so. The application was commenced shortly after the protest began. As events unfolded further issues emerged. Thus, when the Council commenced to use the impugned Regulations rather than the impugned Local Laws, it was not necessary to start a new application in order to come within r 9.21 rather than to rely upon the amendment of an existing application.
172 Rule 8.21(1)(g)(ii) allows a party to apply to amend an originating application to add a new claim for relief that arises out of facts or matters that have arisen since the start of the proceeding. When such an amendment is made, the amendment constitutes the start of the proceeding in respect of the claim made by the amendment for the purposes of r 9.21. If the applicants and the parties to be represented by them had the relevant community of interest when the amendment was made, then they had that community of interest at the start of the proceeding for the purposes of r 9.21. It follows that the community of interest existed at the necessary time for purposes of constituting the proceeding as a representative action.
…
The primary judge resolved the issue on a discretionary basis. He reasoned as follows:
173 Then, the Council argued that, even if there was the necessary community of interest, the Court should order that the matter no longer proceed as a representative action. Such an order would be in exercise of the discretionary power to make any order that the Court considers appropriate in the interests of justice under r 1.32 of the Rules. The basis of this contention was that there was no evidence that the represented parties had notice of the representative proceedings.
174 In response to this submission, the first applicant filed his 2 May 2012 affidavit explaining that there had been reports of the Court proceedings at general assemblies of Occupy Melbourne held in November and December 2011. For instance, at the general assemblies held on 6 and 9 November 2011 he said to the protesters:
I am the litigant in this matter, and I am bringing the matter in my own name. That means that I will be the subject of any adverse costs orders. However, I am bringing the case to the court on behalf of Occupy Melbourne, and on behalf of the protestors who have been affected by the Council enforcement actions.
Minutes of the proceedings of the general assemblies and regular updates about the Court proceeding were published on Twitter, Facebook, and the Occupy Melbourne website.
175 This notice was not sufficient to justify a representative proceeding. The notification was brief. It lacked an explanation of the effect of any orders which might be made. Further, the evidence did not establish whether the protesters assented to the proceeding being taken on behalf of each of them.
176 The second applicant filed her 3 May 2012 affidavit also on this issue, which stated at [21]:
I have had recent contact and communication with 28 of the protesters, covering 64 of the Notices to Comply. Those protesters are: Robert Allan Thorpe, Lachlan Gifford Wesley Mirs, Mustafa / Moustafa Sayegh, Kathleen (Kathleen Bennet), Manu, Brett Paatsch, Jeff Pyrotek, Tal Slome, Geoff (Jeff Reinten), Brandon, Michael, Lachlan Gifford, Kev Moran, Ben / Benjamin Baker, Baron De Merxhausenm, Liam, Kade Dors, Deb Hingo, Cobina Crawford, Em, Kieran Lee Walker, Ryan Tews (Ryan), Scott Day, Tim Carson, Tamlin Parker, Tanya Hankle and Dave Saxton. In the course of those communications, I have said to each of the protesters: You were a recipient of a notice to comply that is being dealt with in the court proceedings. Are you happy for us to continue to proceed in a representative capacity in determining the lawfulness of those notices and actions taken in relation to them?
Each protester has responded: Yes.
177 The notice given by the second applicant was personal to each of the 28 recipients of the notices to comply, and it sought and received a personal assent for the second applicant to represent them in the action. However, it gave no explanation of the consequence to the individual of the matter proceeding as a representative action. Consequently, this notice was also insufficient to justify the matter proceeding as a representative action.
178 However, there are several other issues relevant to the exercise of the discretion.
179 It seems that the concern of the Council was that if the proceeding was to proceed as a representative action, the individual circumstances of each notice to comply and of the enforcement activity under the impugned Regulations would be in issue. Then, the Council would have been required to provide detailed evidence from each of the Council officers about the specific circumstances of each notice and action.
180 However this was not the basis on which the applicants sought the representative action order. The arguments which were common to each of the categories of represented parties were issues of construction which did not depend on an examination of the individual circumstances in which the notices were served or the enforcement activity occurred. They depended on the wording of the notices and the scope of the provisions. Consequently, the problems which the Council thought it may have to confront if the matter proceeded as a representative action did not arise in the way the applicants brought their case.
181 Then, the Council argued that the representative proceeding was unnecessary because all the legal issues could be resolved in the action taken by the applicants alone. In particular, all the construction issues concerning the notices to comply were raised by the notices to comply issued to the second applicant herself.
182 On the other hand, when asked by the Court why the representative orders were sought by the applicants, Mr Merkel replied “[t]hey wanted to sue as representatives, because it was a movement that was coming to court”.
183 It thus appeared that the value to all of the parties in pursuing the arguments on representative capacity was limited. Nonetheless, the arguments took a significant amount of time and effort. It is doubtful that the arguments served a valuable purpose for any of the parties.
184 Ultimately, the issue should be resolved by reference to the principle underlying r 9.21. The primary purpose of a representative proceeding is to avoid a multiplicity of proceedings that agitate the same issues.
185 It is unlikely that if the action does not proceed as a representative action the protesters other than the applicants will commence proceedings to raise the issues agitated in this case. The main interest in the matter proceeding as a representative action seems to derive from the nature of the Occupy Melbourne protest as a collective action. This interest is in essence cosmetic. It does not justify orders under r 9.21. The evidence as a whole does not establish that the proposed represented parties wish proceedings to be pursued on their behalf as a result of the action taken against them or against the protesters. Rather, there is nothing to suggest that they will not be content if the issues are determined in the application brought by the applicants alone.
186 Consequently, the Court will order that the proceeding not continue as a representative proceeding. This means that the construction arguments concerning cll 2.11 and 4.6 of the Local Law, and the validity of the enforcement activities will be considered only in relation to the notices to comply issued to, and the action taken against, the second applicant. The lawfulness of the arrests is considered commencing at [454] on a basis which is there explained.
The appellant contended in her written submissions that this exercise of discretion miscarried because: (i) no particular notice requirement exists for representative proceedings and his Honour wrongly applied an inflexible rule requiring notice meeting some minimum standard, (ii) there was no evidence from which his Honour could infer that other protesters would take proceedings, and (iii) in any event, the wishes of the other persons were irrelevant.
According to the appellant these matters establish an error of principle in the exercise of the discretion attracting appellate intervention consistent with the reasoning in House v The King (1936) 55 CLR 499 at 505.
These grounds do not correspond to those in the further amended notice of appeal, but were the only grounds developed in the written submissions.
For its part, by notice of contention, the Council contended that the primary judge erred in finding that the appellant had the same interest as other protesters in the determination of the validity of the notices to comply, the validity of the enforcement actions and the validity of the arrests.
The conduct of the case before the primary judge and on appeal creates difficulty for the appellant. In particular, the primary judge found that the appellant had the same interest as the other persons the subject of enforcement actions and arrest on the basis that the case “involved a challenge based on the interpretation of the scope of the provisions but not on the detailed factual circumstances of each event” (at [162]). If, to the contrary, the case had involved “challenges to the validity of the notices to comply, the enforcement actions and the arrests … concerned with the separate factual circumstances of each of these actions then the protesters and those against whom action was taken would not have had the same interest in a substantial legal issue in the proceeding” (at [161]). The finding of the same interest for the purpose of r 9.21(1) thus depended on the primary judge’s understanding that the appellant’s case did not concern the “separate factual circumstances” of each enforcement action. On appeal, however, the appellant contends that the primary judge erred in not analysing the specific factual circumstances of each enforcement action in order to determine that, even if the impugned provisions of the Local Law and Regulations are valid, the enforcement actions as a whole were nevertheless unlawful, being in breach of s 38 of the Charter (grounds 3(b) and 4(c)).
The appellant cannot have it both ways. She cannot both take the benefit of the primary judge’s finding that because the appellant’s (and Mr Muldoon’s) case operated at a high level of generality they had the same interest as others for the purposes of r 9.21(1) and assert error by the primary judge in not dealing with the specific factual circumstances of each enforcement action; at the least the appellant cannot do so without challenging the primary judge’s finding that if specific factual circumstances had to be considered then the appellant would not have the same interest as the other individuals the subject of enforcement activities and arrest.
The Council also cannot have it both ways. Where it suited the Council, in respect of its notice of contention, it relied on the fact that the appellant had challenged each and every notice as invalid before the primary judge. Where this did not suit the Council (all other issues apart from the notice of contention), the Council maintained that the primary judge had correctly understood the way in which the appellant had put the case below (that is, at a high level of generality, and irrespective of the specific factual circumstances of individual enforcement actions and arrests) and should not be permitted to recast the case in the appeal.
Apart from this, the assertion of error of principle by the primary judge is unpersuasive.
The primary judge was not applying an inflexible rule requiring the giving of notice of a particular standard. He was doing no more than correctly recognising that the other people who had been served with notices to comply had a real interest in knowing what was purported to be done on their behalf and how it might affect them. A person served with a notice was bound to comply, failing which the person committed a separate offence for which they might be prosecuted. A declaration of validity or invalidity of a notice served on a person has obvious legal and practical consequences for that person. In these circumstances, the primary judge’s concern that those other persons had not been sufficiently informed about the proceedings, the relief being sought, and its potential impacts on them, was valid.
On the same basis, we do not accept that the wishes of the other people the subject of the enforcement actions and arrests were an irrelevant consideration which the primary judge was prohibited from taking into account in the exercise of his discretion. No such limitation on the discretion is apparent from the terms of r 9.21. To the contrary, the fact that such other people “could have been parties to the proceeding” indicates that their views may well be relevant to the making of any order that a proceeding not be permitted to be started or to continue as a representative proceeding. The appellant cited no authority to support the proposition that the views of the people being represented constitutes an irrelevant consideration prohibited from being taken into account and there is no reason apparent from the scheme for representative proceedings or in principle to infer the existence of any such prohibition.
The challenge to the exercise of discretion on the basis that there was no evidence from which his Honour could infer that other protesters did not wish proceedings to be taken on their behalf is misconceived. The primary judge was not making a finding based on no evidence. The point he was making has to be understood in context. The context was the issue of avoiding a multiplicity of proceedings, which the primary judge, rightly, considered a primary purpose of r 9.21 (at [184]). In this context, he observed that the “evidence as a whole does not establish that the proposed represented parties wish proceedings to be pursued on their behalf as a result of the action taken against them or against the protesters” and that there “is nothing to suggest that they will not be content if the issues are determined in the application brought by the applicants alone”. It is on this basis that his Honour said it is “unlikely that if the action does not proceed as a representative action the protesters other than the applicants will commence proceedings to raise the issues agitated in this case” (at [185]). The point being made was that the lack of evidence about the position of the other protesters who had been the subject of enforcement action or arrest indicated the unlikelihood of a multiplicity of proceedings. His Honour was entitled to draw that inference from the lack of evidence adduced about these matters.
Insofar as the grounds in 6(a) to (d) of the further amended notice of appeal are concerned, the oral submissions adverted to, but failed to develop, these grounds.
As to (a), the primary judge’s description of the interest in the proceeding being constituted as a representative proceeding being “in essence cosmetic” (at [185]) does not disclose any error of principle. His Honour’s point was that, when analysed, it was the collective nature of the protest that appeared to underpin the desire to constitute the proceedings as a representative action. Given that it was unnecessary for the proceeding to be so constituted for the appellant to challenge the validity of the provisions of the Local Law and Regulations in dispute and the enforcement actions taken against her, this description was not unjustified. Even if unjustified, it does not disclose any error of principle.
As to (b) and (c), the primary judge was well aware of, and took into account, the fact that the appellant was suing as “a movement engaged in the public communication and protest about political and government matters”. This consideration is apparent from the findings the appellant impugns at [185] of the primary judge’s reasons.
As to (d), the appellant has not explained how or why the primary judge acted unreasonably or unjustly. Insofar as this might relate to the timing of the order, the issue is dealt with below.
As to 6(e), which was referred to in submissions, the relevant question was not one of a change of circumstances. The issue of the proceeding continuing as a representative proceeding was alive from the outset. The Council had submitted during the hearing that the proceeding, if properly commenced as a representative proceeding (which the Council disputed), should not be permitted to continue as such based on certain discretionary considerations. The primary judge was persuaded that the Council was correct. The fact that the primary judge deferred ruling on the issue until judgment was delivered does not mean that he had to identify some change of circumstances between the proceeding starting and the date of the ruling. It is plain that his Honour’s conclusion was based on the circumstances as they existed at the date of the hearing. He took into account the whole of the evidence then available and exercised his discretion accordingly.
For these reasons, the challenge to the primary judge’s exercise of discretion fails. For what it is worth, we consider that the conclusion the primary judge reached that the proceeding should not continue as a representative proceeding (assuming it was properly started as one) was the preferable result. Notices to comply were issued by a multiplicity of officers of the Council, the identity of whom (bar one), remain unknown. The identity of the recipients of many of the notices remains unknown, false names having apparently been given to the officers of the Council. The effect of the enforcement actions on the persons the subject of them remains unknown. The persons the subject of those activities have a direct interest in the validity or invalidity of any enforcement action taken against them. The evidence did not establish that those persons had been informed about the relief sought in the proceedings or how the proceedings might impact on them. Permitting the proceeding to continue as a representative proceeding, in these circumstances, would have been inappropriate. Accordingly, even if the primary judge had erred in the exercise of his discretion, we would not have been persuaded to permit the proceeding to continue as a representative proceeding in any event.

Whether it is described as the Council discharging the burden of demonstrating the actions of the council officers were proportionate (as the appellant would have it), or as Ms Kerrison failing to discharge the burden of showing the actions were disproportionate (as the State would have it), when the Court is examining on appeal the evidence as it existed at trial and considering the arguments now put about that evidence, the matter can be resolved without resort to questions of onus or burden. In our opinion where an important legal issue under the Charter is currently reserved before the Victorian Court of Appeal, unless it were necessary to determine the matter in order to decide an issue on the appeal, this Court should refrain from expressing any opinion on it.
The focus in argument on the appeal was on the first incident involving Ms Kerrison and the tent. The appellant invited the Court to watch the video of this incident which was exhibited to Ms Kerrison’s affidavit and the Court did so. It is fair to say the manner in which the power in reg 34(3) was exercised to remove the tent from Ms Kerrison does not reflect well on the Council or Victoria Police. The choice to exercise the power conferred by the Regulations in those circumstances may not have been the most appropriate choice. Those observations say nothing about the lawfulness of the Council and police conduct but simply reflect what we consider might be the reaction of many members of the community on seeing that video.
At trial, the appellant expressly elected to discontinue any allegations against the police officers involved in the removal of the tent from her person. It was never clarified in argument on the appeal whether the appellant alleged it was Victoria Police officers who removed the tent and the Council officers “caused” it be removed, or whether she alleged it was Council officers who removed the tent directly, or a combination. Rather it was generally asserted that the removal for the purposes of reg 34(3) meant Council officers acted in a way which was incompatible with Ms Kerrison’s human rights under ss 15(2), 16(1) and 16(2) of the Charter.
It is possible to read the primary judge’s summary conclusion at [78](7) as also covering these arguments. The primary judge expressly refers to the relief sought under ground 4A of the 4^th further amended application, and the evidentiary basis relied on, at [67] of his reasons. He briefly refers to the removal of the tent from Ms Kerrison at [63] and [68] of his reasons. He also briefly refers to the removal of the banner at [69] of his reasons. Unlike the other Charter matters, however, there is nothing in that part of the primary judge’s reasons where he considers the Charter arguments ([450] - [453]) about this claim, or about enforcement under the Regulations. The primary judge deals only with the Local Law in this part of his reasons. That focus is also apparent in the preceding sections where the primary judge recites the parties’ submissions about the Local Law only. There is one part of the primary judge’s reasons where he notes (at [424]) the applicants’ concession that the Charter could not apply to the making of the Regulations as they were enacted prior to the Charter. It is possible this caused his Honour to overlook the applicants’ separate argument about the Charter based on the Council officers’ conduct.
Whatever the explanation, the appellant is correct to submit that the primary judge did not deal with an argument she had made and maintained at trial. Unlike the notices arguments, the respondents accepted that the appellant had made and maintained a Charter argument about these two incidents at trial in the same terms as she put the argument on appeal. The State did not deal with this argument in written submissions, and the Council simply submitted that
the appellant’s evidence concerning the particular enforcement actions in Flagstaff Gardens was also vague and incomplete. The appellant failed to discharge her burden to prove: the relevant enforcement actions; the relevant circumstances of the enforcement action and whether the enforcement action imposed any limitations upon her rights under the Charter, and those who she sought to represent.
The appellant’s invitation to the Court to watch the video meant there was an increased focus in argument on the appeal on this incident. However in common with other aspects of the appeal, there was a lack of detail in the submissions about the evidence the appellant sought to have the Court rely on to make the findings she sought on the appeal. The Council produced, towards the end of the appeal and in consultation with the appellant and the State, a bundle said by all parties to represent the evidence available at trial about this incident.
That exercise having been undertaken, and the Court having identified error in the primary judge’s judgment (by his failure to reach any conclusion on this argument), this Court is in as good a position as the primary judge to make findings on the appellant’s claim under s 38(1) of the Charter. We do so on the basis (as we have earlier stated) that s 7(2) informs the Court’s assessment of when a public authority acts in a way which is incompatible with a human right.
We make the following findings based on that evidence. Much of this account is drawn from the affidavit evidence of Peter Anthony O’Neill sworn 17 February 2012. At the time, he held the rank of Superintendent within Victoria Police, and was not cross-examined at trial.
In the afternoon of 4 December 2011 (that is, two days before the incident relied upon), Council officers and police observed three tents had been erected in Flagstaff Gardens. Protestors were observed to be inside the tents with holes cut out to enable their heads, arms and legs to protrude. They started to run around the Council and police officers displaying a banner. No action was taken against them on this occasion. The following morning, and after receiving legal advice that they could proceed by way of directions under the Regulations rather than by notices to comply under the Local Law, Council officers agreed with Victoria Police that Council officers would adopt the approach of requesting removal of the tents and structures and, if not removed within a reasonable time (for example 10 minutes for a standard tent), Council officers would take action and confiscate the property. The role of Victoria Police was to support Council officers in exercising their powers under the Regulations, to ensure safety and keep the peace, although it was contemplated arrests may need to be made to achieve these objectives.
In the afternoon of 5 December 2011, 15 protestors were observed in Flagstaff Gardens with six tents erected, three of which were being “worn” by three protestors. None were secured to the ground. Council officers served a notice to comply under cl 14.13 and at least one tent was removed without incident. Police did not physically assist the Council officers in that removal.
A little later, there were some protestors still “wearing” tents. Council officers informed them the tents would be seized. A Victoria Police officer spoke to Ms Kerrison, who was also “wearing” one of the tents at this time. Superintendent O’Neill’s evidence was:
At the time of 5 December 2011, Sergeant Hinton spoke to Ms Sara Kerrison who was wearing a ‘tent costume’ at the time and who claimed she was naked underneath. Ms Kerrison told Sergeant Hinton that if an attempt was made to remove her ‘clothes’, she would claim she had been sexually assaulted and would be represented by her solicitor, Megan Fitzgerald.
Legal advice was sought about Ms Kerrison’s claim, and then throughout the evening of 5 December 2011 various discussions occurred between the police, Council officers and protestors (including Ms Kerrison). Ms Kerrison claimed to be homeless and have no clothes. She (and other protestors who made the same claim) were offered clothes, blankets, and transport to the Salvation Army premises to collect clothing. It appears none of the invitations were accepted. Ms Kerrison and the other protestors were warned throughout the evening that the tents they were “wearing” would be removed as having a tent in the gardens without consent was not allowed. Ms Kerrison and the other protestors refused to remove the tents.
In the early hours of 6 December 2011 (around 1am) Council officers enforced the removal of a tent in relation to a male protestor who was sleeping in it and refused to get out of it: indeed, he zipped himself inside the tent. He was arrested and the tent removed. By around 7.30am there were four dome tents erected in the gardens. Council and police officers approached the area where the tents were erected, read out a statement that they were under a legal obligation to remove the tents. After 10 minutes, when the tents were not removed, Council officers seized two empty tents without incident. A third, in which a man was sleeping, was seized after he voluntarily left the tent.
That left the dome tent in which Ms Kerrison had been sleeping. She stood up through an opening in the top of the tent, shouted that the tent was her clothes, she did not consent to being undressed, and that this was sexual assault. She refused to leave the tent, or to remove it. On the basis she had asserted she was not wearing anything underneath the tent, she was asked to put on a set of blue police overalls. She refused. Police and Council officers then encircled her and two female police officers removed the tent which, because of the practical difficulties in doing so, involved using a knife to cut some of the knots holding the tent around Ms Kerrison. Once the tent was removed it was confiscated. Ms Kerrison remained on the ground, with her sleeping bag around her, the unused police overalls next to her, shouting she had been sexually assaulted.
In cross-examination, Ms Kerrison agreed she had remained many nights in the gardens without a tent. She also said it was “impossible to be there without tents when it was pouring down rain”. She admitted laying down in the tent, and spending the night in it, on the night of 5 December 2011, and said she had a blanket. She said she didn’t sleep the entire night because of the patrols by Council officers, and the fact she and other protestors stood up and walked around the gardens with the tent “every 20 minutes” during the night. She insisted she did not classify the tent as a tent: “I was wearing a costume so to me it was being asked to hand over my clothes”. In re-examination she said the wearing of the tent was intended in the beginning to be a commentary on the fact that “Occupy Melbourne as a protest was being told what it could and what it wasn’t or what was acceptable as a form of protest. And so I thought that that, the tent monster costume, was a particularly engaging channel that I could kind of — I could express that idea to the general public”.
Mr Schwartz, who was the responsible officer from the Council to whom we have earlier referred, on being shown the video during cross-examination, accepted that the intent of reg 21 of the Regulations was not “what we see on the TV. If I was there I would have advised the officers just to stand down and observe…. My direction was that clause 21 was to do with camping and tents brought in for the purpose of camping and I don’t think that that’s what we saw on the TV”.
The Council’s submission to which we have referred at [220] above should be rejected. In our opinion, Ms Kerrison’s evidence establishes that by wearing the tent she was using it as a form of protest: as she said, to highlight the fact that the Occupy Melbourne protestors were having the mode and manner of their political protests curtailed by the very authorities against whose power, at least in part, they were protesting. When she was walking around wearing the dome tent she was, in our opinion, exercising her right under s 15(2) to impart information and ideas about how the Occupy Melbourne protests were being constrained.
The direction to her to remove the tent, although lawful, limited her right under s 15(2) because it precluded her from imparting her ideas about the constraints on the Occupy protestors in the way she had decided was most effective. Objectively, it can be appreciated as an effective visual form of protest against the restrictions on tents and camping in tents in the gardens. Whether the manner in which the tent was removed was lawful at common law, or under reg 34(3), is not in issue before us on appeal. We assume, in the absence of any continuing challenge, the manner in which the tent was removed was lawful in that sense. If it was not, it would have been unlikely to be found to be proportionate.
We turn then to consider the proportionality of the limits imposed on Ms Kerrison’s freedom of expression right by the actions of the Council officers in removing the tent, or causing it to be removed.
The respondents relevantly accepted the right to freedom of expression is undoubtedly important, being at the heart of an open and democratic society. The existence and nature of the implied freedom of political communication in the Constitution reinforces the importance of this right. Yet there is obviously a need to ensure that the valid substantive prohibitions in the Regulations can be enforced in a way which is capable of achieving the preservation, care and maintenance of the gardens and their equitable use. The gardens have historic, cultural, environmental and social significance to the Victorian community, and to those who visit Victoria. The freedom of all people to use the gardens lawfully in the way they wish to — whether for exercise, celebrations or quiet contemplation — is important. The horticultural preservation and care of the gardens is an ongoing task, all aspects of which may not be readily apparent to casual users of the gardens. For example, damage caused by some uses may not be immediately apparent, and there is a place for cautious approaches to the preservation of living things such as gardens.
Giving people directions to remove items they are prohibited from having or using in the gardens, and removing those items if the person does not comply with the direction, is a demonstrably justifiable method of seeking to preserve and maintain the gardens and their equitable use. The giving of a direction provides a person with an opportunity to comply with the law, without any further interference. The law in question is not one directed at limiting freedom of expression — it is a law about bringing things into the gardens which may cause damage or interfere with equitable use. The effect on freedom of expression is in that sense incidental. These observations all apply to the directions given to Ms Kerrison, especially since she had been warned over at least two days that her tent, and the tents of others, needed to be removed from the gardens.
There is a clear relationship between giving a direction to remove and actually removing a prohibited item from the gardens, and the purpose of the enforcement provisions. Especially where what the laws are seeking to do is maintain continuous equitable use of the gardens, and continuous preservation of them, enforcement actions which have immediate effect are critical.
On the evidence, an important factor in our opinion is that Ms Kerrison had been using the tent to stay in overnight: that is, she had been camping in the tent and indeed asserted that she needed it to be able to stay overnight in the gardens. She had been using it as a place to stay, not simply as a costume designed as a form of political protest. In other words, she wanted to be able, and intended, to use it for the very conduct which the (valid) Regulations prohibited. The enforcement action was directed at precluding her from doing this. It was not directed at stopping people walking around wearing tents they had brought into the gardens only so they could walk around in them as part of the Occupy Melbourne protest.
In our opinion, the second critical aspect of proportionality on the evidence is whether there were less restrictive means which were reasonably available to the Council officers. This is the aspect which has troubled us, because of the manner in which the video evidence in particular shows the tent was removed from Ms Kerrison. She was no doubt genuinely embarrassed, upset and perhaps humiliated in having the tent removed when she had little clothing on underneath. On the evidence, however, this was a consequence she undertook to risk. She had placed herself in the same position the day before, by also standing up into the tent and walking around, proclaiming she had no clothes on underneath and that removing her tent would be sexual assault. In our opinion this evidence demonstrates she knew there was a risk the prohibition of which she had been informed would be enforced against her and she was attempting to challenge the Council officers not to enforce it because she had elected not to wear any clothes underneath the tent. On both days she was offered clothes and refused them. On 5 December 2011 no action was taken to remove the tent, but she continued to contravene the Regulations again that night by staying all night in the tent, using it for shelter, and then again ensuring she had no clothes on underneath the tent when she stood up and started walking around in it the following day, again in effect challenging the officers not to remove it because she was not wearing anything but a bra and pants underneath.
Other protestors had complied with the direction to remove the tents they had slept in from the gardens. If the officers did not act to remove Ms Kerrison’s tent, then it was a rational and reasonable inference she would again use it for shelter and stay in it overnight on 6 December 2011, in direct and knowing contravention of the prohibitions. The Regulations like the Local Law have a permission scheme built in, although in this case permission had not been sought. Perhaps there was an error of judgment in removing the tent by force while Ms Kerrison was wearing it rather than while she was staying in it overnight: with hindsight, these assessments are generally easier. The officers were in a tense situation where there was apprehended to be potential damage to the gardens and their equitable use, and protestors like Ms Kerrison were expressly refusing to comply with reasonable directions, and deliberately contravening a law they regarded as at least unfair and perhaps unlawful but which at that time had not successfully been impugned.
It is not possible to conclude that less restrictive means to enforce the prohibition were available on 6 December 2011. Certainly, on that day, the Council officers could have chosen not to enforce the prohibition at all, as they had done on 5 December 2011. This assumes that the only proportionate way in which the Council officers could act was by permitting continued contravention of the prohibition. The appellant did not meaningfully develop her argument to this effect and thus it was not dealt with by the respondents. We doubt that the argument can withstand scrutiny given the assumption on which it is based.
We find the Council officers did not act incompatibly with Ms Kerrison’s human right to freedom of expression by removing the tent she was “wearing” on 6 December 2011.
In relation to the action of the Council officers in removing the Occupy Melbourne banner, there was no attention at all paid to this in oral argument. In those circumstances the appellant has not discharged her (agreed) burden of persuading this Court, considering the matter for itself, as to how and why the actions of the Council officers limited her human rights under ss 15 and 16. To take one example, we were not taken to any evidence to identify what the connection was between Ms Kerrison and the banner: that is, whether it was her banner, or whether she was prevented from erecting it.
6.5 The notices issue (ground 5)

The notices to comply with which ground 5 is concerned were each addressed to and served on the appellant. The first notice, issued on 30 November 2011, records that:
You have been served this notice because an Authorised Officer of the Council reasonably believes that you are in breach of the Activities Local Law 2009.
Under a section headed “Details of breach” in the first notice a reference to cl 4.6 of the Local Law, and the text of that provision, has been struck through by hand. There follows a reference to cl 2.11 in these terms:
Clause 2.11 – Camping in Public places,
Unless;
In accordance with a permit, a person must not camp in or on any public place in a vehicle, tent, caravan or any type of temporary or provisional form of accommodation.
The first notice continues:
You are directed to:
Comply with the Activities Local Law 2009 and
√ Stop the conduct which breaches the Activities Local Law 2009 by:
…
The first notice then states:
To comply with the direction in this Notice you should:
(specify what action is required)
Light blue tarp removed from any public place
You are served with this notice and you must comply with its directions. Failure to comply is an offence and penalties may apply.
The first notice is signed by an authorised officer of the Council whom the evidence did not identify. The second notice, issued on 1 December 2011, is in the same terms but for the time and date of issue and compliance and the specification of the action required. In the latter respect, the second notice is in these terms:
To comply with the direction in this Notice you should:
(specify what action is required)
To remove items/things, namely Dome tent & associated items from any public place.
The third notice, dated 2 December 2011, is also in the same terms but for the time and date of issue and compliance and the specification of the action required. In the latter respect, the third notice is in these terms:
(specify what action is required)
Remove Blue Dome tent & associated items from any public place
Insofar as the appellant’s challenge to the validity of the notices depends on the construction of cl 4.6 and reliance in any notice on cl 4.6, it is apparent that no such challenge can be mounted against the notices to the appellant in issue in ground 5. None of those notices referred to or relied upon cl 4.6 of the Local Law.
The appellant otherwise submitted that the notices to the appellant were bad on their face because: (i) the notices did not direct the appellant to stop any conduct in breach of the Local Law but, rather, directed the removal of items, (ii) amongst other items the notices required to be removed were “associated items” when cl 2.11 prohibited only, relevantly, camping in tents, (iii) accordingly, the notices are only explicable on the basis that the authorised officer considered that cl 2.11 prohibited camping per se when, in fact, it prohibited camping in a form of accommodation, and (iv) the primary judge erred in concluding at [228] that other items such as mattresses, pillows and sleeping bags could be required to be removed because they were used in the conduct of camping.
None of these submissions withstand scrutiny.
First, the notices directed the appellant in terms to stop conduct identified as being in breach of cl 2.11 of the Local Law, namely, to not unless in accordance with a permit, camp in or on any public place in a vehicle, tent, caravan or any type of temporary or provisional form of accommodation. The directions to remove items specified the action required to comply with the Local Law.
Second, cl 2.11 of the Local Law prohibited, relevantly, camping in tents. There is no dispute on the evidence that the appellant was camping in a tent. In order to camp in a tent, associated items such as pegs, ropes, groundsheets and the like are commonly used. There is no evidence from which it might be inferred that the “associated items” referred to in the notices to the appellant did not contemplate the removal of items such as pegs, ropes and the like. Accordingly, it cannot be concluded that the notices are bad on their face for this reason. Clause 2.11 is not to be construed so narrowly that items necessary to enable camping in a tent, such as pegs, ropes, groundsheets and the like, are beyond its reach. Such a construction has nothing to commend it.
Third, and as a result of the second proposition, it cannot be said that the notices are only explicable on the basis that the authorised officer considered that cl 2.11 prohibited camping per se. The authorised officers who issued the notices to the appellant are unidentified. On their face, each notice refers to a form of accommodation, being the tarp or a tent. The “associated items” are identified as associated with the identified form of accommodation. If any inference is capable of being drawn about what each authorised officer considered from the face of the notices, which we doubt, the inference that would be drawn is that each officer correctly understood the terms of cl 2.11 as set out in full in the notice.
Fourth, we can see no error in the primary judge’s reasoning at [228]. Camping in a tent or any other form of accommodation necessarily involves the use of more than the tent and the accommodation itself. It involves sleeping, eating and other activities of daily life. The facilities a person uses to enable these activities to be conducted, such as mattresses, sleeping bags and pillows, are integral to the conduct of camping in a form of accommodation. As such, the prohibition in cl 2.11 extends to such items if, in fact, they are so used. The appellant’s submissions on this issue miss the point. It is no doubt true that the appellant could have camped in the areas in question without contravening cl 2.11. In so doing, she could have used a mattress, sleeping bag and pillow (subject to such other provisions of the Local Laws which might have been engaged by that conduct). That is not, however, what the appellant did. She camped in a tent. The prohibition in cl 2.11 was thus engaged and extended to all items in fact used by the appellant to facilitate her activity of camping in a tent.
Ground 5 of the appeal thus fails.
6.6 The cl 4.6 notices issue (ground 7)
Ground 7 depends on the appellant having succeeded in respect of the representative proceeding issue (ground 6). The appellant did not succeed on the representative proceeding issue. Accordingly, ground 7 does not arise for consideration. The appellant did not have standing to challenge the 67 notices issued to other people in sole reliance on cl 4.6. Nor did she represent those other people. Nor, for that matter, did the appellant seek any relief referable to ground 7 of the further amended notice of appeal.
For these reasons ground 7 does not arise and will not be considered further.
6.7 The cl 4.6 construction issue (ground 8)
The Council’s contention that the proper construction of cl 4.6 does not arise on the appeal is correct. The appellant succeeded in having the notices served on her in sole reliance on cl 4.6 declared invalid. The Council did not appeal against that declaration. The appellant has not been permitted to argue the standing issue and has failed in her appeal on the representative proceeding issue. Accordingly, there is no ground of appeal which requires consideration of the proper construction of cl 4.6.
Nor do we consider it appropriate to succumb to the temptation to opine about a matter such as this when it is not in issue other than to say that the only construction proposed by the appellant to the primary judge, that “other things” should be construed ejusdem generis with the phrase “advertising signs”, or the suggestion in oral submissions during the appeal that things involving political comment should be read as excluded from “other things”, have nothing to commend them: the first, for the reasons given by the primary judge at [232] to [234] and the second, because nothing in the text or context of cl 4.6 in the Local Law would support such a reading.
Ground 8, accordingly, must fail.
6.8 The arrest issue (ground 10)
In written submissions the appellant made two points about ground 10 as follows:
First, … properly construed, there is no power to arrest if there is no valid law which could have given rise to the relevant “offence” referred to in ss 458(1) and 462 of the Crimes Act. The result is that, if cll 14.1, 14.13 and 14.16 are unlawful, invalid or inoperative, there is no power to arrest. The arrests of the protesters for “offences” against cl 14.1 were therefore not authorised by s 458(1).
Secondly, if “offence” in s 458(1) and 462 of the Crimes Act (in the context of s 228(4) of the Local Government Act) is ascribed a meaning by which it picks up offences against a law which law is invalid by reason of the implied freedom, then those sections are invalid. That was the conclusion reached by McHugh J in Coleman at [142] and it should be followed. The underlying reasoning is similar to that set out above. Sections 458(1) and 462 effectively burden the freedom in a similar, but additional, way to the underlying prohibitions in the Local Law and they are no more proportionate to a compatible end. If the underlying prohibitions are invalid, it is a fortiori that ss 458(1) and 462 are invalid to that extent.
Ground 10, however, does not refer to s 462 of the Crimes Act. It refers to s 458(1) of the Crimes Act and s 224(8) of the Local Government Act. We take “s 228(4)” in the submissions to be a typographical error.
Section 224(8) of the Local Government Act provides that a person is guilty of an offence if the person, amongst other things, obstructs or hinders an authorised officer while performing his or her duty. The appellant used s 224(8) as an example of an “offence” to which s 458(1) could apply in the circumstances of this case.
Section 458(1) of the Crimes Act provides that a police officer may arrest a person the officer finds committing any offence. Section 462 defines “finds committing”. In addition to these provisions, the appellant’s written submissions in reply refer to s 461(1) of the Crimes Act (discussed further below), a provision mentioned in neither the further amended notice of appeal nor the appellant’s written submissions in chief, but which first appears in a notice given by the appellant on 1 August 2014 under s 78B of the Judiciary Act 1903 (Cth).
In answer to the appellant’s case, the State (the police rather than the Council being responsible for the arrests) made these points:
1.The appellant was not arrested and did not have standing to challenge the arrests. For that reason, the primary judge held that it was “not necessary to consider the lawfulness of the actions of the police”: at [454]. That conclusion was correct.
2.Even if the Court were to conclude that the enforcement provisions in the Local Law and Regulations were invalid, the actions of the police officers under s 458(1) of the Crimes Act were nevertheless lawful. This is because the reasoning of the majority in Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48 at [27]-[28] should be preferred to the reasoning of McHugh J in Coleman 220 CLR 1; [2004] HCA 39 at [142].
3.Section 461(1) of the Crimes Act, which was not in play in the enactment considered in Coleman, supports this, as it provides that:
Where an apprehension is made under a belief on reasonable grounds in accordance with the provisions of section 458 … the apprehension shall not cease to be lawful or be taken to be unlawful where it subsequently appears or is found that the person apprehended did not commit the offence alleged.
4.The appellant should not be permitted to advance the argument that ss 458(1) and 461 are invalid. As the State put it:
No declaration of invalidity of ss 458(1), 461 or 462 of the Crimes Act was sought before North J, nor is there any ground of appeal contending that North J erred in failing to hold that those sections were invalid. Further, when the appellant’s senior counsel (in his reply) started to “stray” into this area, the respondents objected and senior counsel for the appellant disavowed any such constitutional challenge (as is recorded by North J at [465]). In those circumstances – and in a factual context where the issue is peripheral given that the appellant was never arrested – it is not in the interests of justice that the appellant be permitted to raise a new argument on appeal. She should be bound by the conduct of her case below.
The appellant contended in written submissions in reply that she should be permitted to challenge s 461(1) of the Crimes Act because:
The argument is legal, not factual: no prejudice is identified. In any event, the issue arises on the appeal and, unlike the position below, the requisite s 78B notices were given on 1 August 2014.
The State’s first and fourth contentions are compelling. The appellant should not be permitted to raise these issues in the appeal. Neither the other parties nor the Court should have been burdened by consideration of these issues in the circumstances which the State has identified. In any event, we have not concluded that the enforcement provisions were invalid. Accordingly, the necessary premise for the appellant’s argument in ground 10 does not arise. Given that the appellant does not have standing to challenge the arrests of other people, does not have leave to raise the issue of standing in the appeal, has failed in respect of the constitutional and Charter issues, failed to seek any declaration of invalidity of ss 458(1), 461 or 462 below, and failed to include in the further amended notice of appeal any complaint about the primary judge not having found the now impugned sections to be invalid, any temptation to consider the substance of ground 10 should be resisted. To yield to this temptation would be to treat the hearing before the primary judge as a “preliminary skirmish” (Coulton 162 CLR 1 at 7), and the further amended notice of appeal and case management procedures of this Court as meaningless. No matter how interesting the issue, the Court should not be inveigled into giving opinions about issues not properly before it, particularly not those which involve hypotheses that multiple other conclusions are incorrect before the issue could arise even if properly raised.
Ground 10 should be rejected for these reasons.
7. CONCLUSION
The appeal should be dismissed. The appellant should pay the respondents’ costs of and incidental to the appeal.

I certify that the preceding two hundred and seventy-one (271) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Flick, Jagot & Mortimer.
Associate:
Dated: 3 October 2014

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
Cases cited: Date of hearing: Date of last submission: Place: Division: Category: Number of paragraphs: Counsel for the Appellant: Solicitors for the Appellant: Counsel for the First Respondent: Solicitor for the First Respondent: Counsel for the Second Respondent: Solicitor for the Second Respondent: Counsel for the Third Respondent: Solicitors for the Third Respondent: Counsel for the Fourth Respondent: Solicitor for the Fourth Respondent:	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) 293 ALR 257; [2012] HCA 55 Commonwealth v Grunseit (1943) 67 CLR 58 Corporation of the City of Adelaide v Corneloup (2011) 110 SASR 334; [2011] SASCFC 84 Coulton v Holcombe (1986) 162 CLR 1 Federal Insurance Ltd v Wasson (1987) 163 CLR 303 Hansen v The Queen [2007] 3 NZLR 1; [2007] NZSC 7 Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 House v The King (1936) 55 CLR 499 Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Minister for Industry and Commerce v Tooheys Ltd (1982) 60 FLR 325 Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4 Muldoon v Melbourne City Council (2013) 217 FCR 450; [2013] FCA 994 Muldoon v Melbourne City Council [2011] FCA 1306 Nicklinson v Ministry of Justice [2014] 3 WLR 200; [2014] UKSC 38 O’Flaherty v City of Sydney Council [2014] FCAFC 56 PJB v Melbourne Health [2011] VSC 327 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 R v Oakes [1986] 1 SCR 103 Re Application under the Major Crimes (Investigative Powers) Act 2004 (2009) 24 VR 415; [2009] VSC 381 Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48 Sabet v Medical Practitioners Board of Victoria (2008) 20 VR 414; [2008] VSC 346 Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd (No 4) (2010) 268 ALR 108; [2010] FCA 482 Schubertv Wanganui District Council [2011] NZAR 233; [2011] NZHC 48 Sunol v Collier (No 2) (2012) 289 ALR 128; [2012] NSWCA 44 Sunshine Coast Broadcasters Pty Ltd v Australian Communications and Media Authority (2012) 209 FCR 518; [2012] FCA 1205 Tabernacle v Secretary of State for Defence [2009] EWCA Civ 23 Unions New South Wales v New South Wales (2013) 304 ALR 266; [2013] HCA 58 Vines v Djordjevitch (1955) 91 CLR 512 Wotton v Queensland (2012) 246 CLR 1; [2012] HCA 2 20-22 August 2014 22 August 2014 Melbourne GENERAL DIVISION Catchwords 271 Mr R Merkel QC with Mr C Lenehan, Mr E Nekvapil and Mr D Hume Fitzroy Legal Service Mr R Niall QC with Mr R Attiwill QC Hunt & Hunt Lawyers The Second Respondent submits to any order the Court may make save as to costs Victorian Government Solicitor’s Office Dr S Donaghue QC with Mr A Pound Victorian Government Solicitor’s Office The Fourth Respondent submits to any order the Court may make save as to costs. Victorian Government Solicitor’s Office

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1105 of 2013

JUDGE:	FLICK, JAGOT & MORTIMER JJ
DATE OF ORDER:	3 OCTOBER 2014
WHERE MADE:	MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL GENERAL DIVISION	VID 1105 of 2013

JUDGE:	FLICK, JAGOT & MORTIMER JJ
DATE:	3 OCTOBER 2014
PLACE:	MELBOURNE