Kerrison v Melbourne City Council
[2014] FCA 523
FEDERAL COURT OF AUSTRALIA
Kerrison v Melbourne City Council [2014] FCA 523
Citation: Kerrison v Melbourne City Council [2014] FCA 523 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: GORDON J Date of judgment: 21 May 2014 Date of hearing: Determined on the papers Date of last submissions: 15 May 2014 Place: Melbourne Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 14 Counsel for the Appellant: R Merkel QC with J Forsaith Solicitor for the Appellant: Fitzroy Legal Service Solicitor for the First Respondent: N Connell of Hunt & Hunt Solicitor for the Second, Third and Fourth Respondents: J Davidson of Victorian Government Solicitor’s Office
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1105 of 2013
BETWEEN: SARA LOUISE KERRISON
AppellantAND: MELBOURNE CITY COUNCIL
First RespondentCHIEF COMMISSIONER OF POLICE
Second RespondentSTATE OF VICTORIA
Third RespondentATTORNEY-GENERAL FOR THE STATE OF VICTORIA
Fourth Respondent
JUDGE:
GORDON J
DATE OF ORDER:
21 MAY 2014
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The applications for security for costs of the appeal filed by the First Respondent and Third Respondent are dismissed.
2.The First Respondent and Third Respondent pay the Appellant’s costs of, and incidental to, the applications (if any), such costs to be taxed in default of agreement.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1105 of 2013
BETWEEN: SARA LOUISE KERRISON
AppellantAND: MELBOURNE CITY COUNCIL
First RespondentCHIEF COMMISSIONER OF POLICE
Second RespondentSTATE OF VICTORIA
Third RespondentATTORNEY-GENERAL FOR THE STATE OF VICTORIA
Fourth Respondent
JUDGE:
GORDON J
DATE:
21 MAY 2014
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
INTRODUCTION
This appeal concerns the “Occupy Melbourne” protest as described in the substantive reasons for judgment delivered by the primary judge on 1 October 2013: Muldoon v Melbourne City Council (2013) 137 ALD 257. The trial occupied eight days in 2012. At trial, the applicants (Mr Muldoon and Ms Kerrison) received pro bono legal support and did not pay any legal costs. None of the respondents (the Melbourne City Council, the State of Victoria, the Chief Commissioner of Police or the Attorney-General for the State of Victoria), sought security for their costs prior to or during the trial.
The primary judge identified nine issues that were determined at trial as well as the conclusions his Honour reached (at [78]) as follows:
…
1.Whether the challenges to the Local Government Act [1989 (Vic)] and the Crown Land Reserves Act [1978 (Vic)] and the impugned Local Laws and the impugned Regulations made under them respectively are matters arising under the Constitution or involving its interpretation such that the Court has jurisdiction under s 39B(1A)(b) of the Judiciary Act [1903 (Cth)].
The Court accepts the applicants’ argument that the Court has jurisdiction.
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 [Ms Kerrison] were validly issued. The Court accepts the argument of [Ms Kerrison] 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 [of Human Rights and Responsibilities Act 2006 (Vic)].
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 [of Human Rights and Responsibilities Act 2006 (Vic)].
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 [of Human Rights and Responsibilities Act 2006 (Vic)].
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 [of Human Rights and Responsibilities Act 2006 (Vic)].
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.
Under r 36.09 of the Federal Court Rules 2011 (Cth), the Melbourne City Council and the State of Victoria each seek security for their costs in relation to the appeal filed by Ms Kerrison. Mr Muldoon has discontinued his appeal. The Chief Commissioner of Police and the Attorney-General for the State of Victoria each filed a Submitting Notice save as to costs pursuant to r 12.01 of the Federal Court Rules 2011 (Cth). They do not seek security for their costs.
The State of Victoria described its claim for security for costs as follows:
[Ms Kerrison] was almost wholly unsuccessful at trial and now seeks to re-litigate on appeal almost every finding of the trial judge. [Ms Kerrison], who is impecunious, additionally seeks determination of matters that the trial judge considered unnecessary to determine, and of claims of non-parties in respect of which she has no standing and has not been permitted to advance on a representative basis. The State of Victoria submits that the claims have no merit and will result in considerable costs to the Respondents which, together with the costs of the trial already ordered against [Ms Kerrison], are unlikely to be recovered. This is not a case in which there is a significant public interest in “eminently arguable” claims that would justify the Respondents being required to bear the costs of the proceeding.
Melbourne City Council adopted these submissions.
APPLICABLE PRINCIPLES
The applicable principles are not in dispute. The Court has a wide discretion that will depend on the circumstances of the case. It is unfettered but it must be exercised judicially. There is no shopping list or formula to apply when considering an application for security for costs: Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1998) 105 LGERA 254.
The factors to be considered may include the prospects of success, the quantum of risk that a costs order against the appellant will not be satisfied, whether the making of an order would stifle a reasonable appeal, whether any impecuniosity of the appellant arises out of the conduct complained of, whether there are aspects of public interest which weigh in the balance against such an order and other particular discretionary matters peculiar to the circumstances of the appeal: Equity Access Ltd v Westpac Banking Corp (1989) ATPR 40-972. However, as a general rule in considering an application for security for costs, (1) the Court should not be required to investigate in considerable detail the likelihood or otherwise of success in the appeal (cf Appleglen Pty Ltd v Mainzeal Corporation Pty Ltd (1988) 79 ALR 634 and Equity Access) and (2) a natural person will not be required to provide security merely because that person is impecunious: Barton v Minister for Foreign Affairs (1984) 2 FCR 463 at 469.
ANALYSIS
In the circumstances, it is not appropriate for there to be an order for security for costs in favour of the Melbourne City Council and / or the State of Victoria.
Ms Kerrison’s impecuniosity is not disputed. Ms Kerrison’s position is as follows:
(a)she is a physics student who has currently deferred her studies for 6 months to enable her to focus on the present proceedings (which she anticipated would be set down for hearing in May 2014);
(b)her source of income is currently the Newstart allowance in the amount of $510.50 per fortnight;
(c)when she returns to full-time study, she anticipates that her source of income will be the Austudy allowance;
(d) she saves very little if any money after paying for living expenses;
(e) she has no assets of significant resale value; and
(f)she has no access to external sources of funding to enable her to meet legal expenses;
(g)the Occupy Melbourne group has no assets or funds that could meet the order for security for costs and she is not aware of any Occupy Melbourne protester who could, or would, provide funds to meet the security for costs order.
The evidence disclosed that because of the matters listed in (b)-(g) above, Ms Kerrison will have to discontinue her appeal if there is an order for security for costs. This case does not fall within any of the exceptions to the rule that poverty is no bar to a litigant.
Next, the nature of the issues raised and their prospects of success. The issues determined by the primary judge are set out at [2] above. In the status report filed in Court by the parties on 28 April 2014, it described the appeal in general terms as follows:
Having regard to constitutional and Charter grounds, the appeal raises questions as to the extent to which:
•the right to public protest can be restricted by the local law
•the enforcement processes engaged under the local law are valid
•public protest may be limited by administrative action that is not open to scrutiny
The appeal raises the question as to whether representative proceedings might be used to restrict the exercise of statutory power that is directed to prevent a public protest.
Notwithstanding that statement, the Melbourne City Council and the State of Victoria submitted that the claims against the respondents have no prospect of success. Ms Kerrison, the Melbourne City Council and the State of Victoria each filed extensive submissions addressing the merits of the various appeal grounds. The appeal grounds include issues about:
1.Whether the proceeding should have continued as a representative proceeding;
2.The sun-setting of regulations;
3.Questions of statutory construction;
4.The implied freedom of political communication; and
5.The role of police in enforcement.
Ms Kerrison also submitted that the appeal raises matters of general public importance quite apart from the interests of the parties and that is a relevant consideration: cf Devenish v Jewel Food Stores Pty Ltd (1990) 64 ALJR 533 at 534.
Given the nature of the appeal grounds and the issues raised by those appeals, it is not practically possible at this stage of the appeal to describe each appeal ground as hopeless. That will be determined by an appeal court. What is apparent is that this appeal raises questions of public law and is a bona fide appeal by an impecunious individual against the State, State instrumentalities or institutions. The manner in which the appeal is to be conducted, of course, is a matter for the appeal court. The parties and their counsel will be expected to conduct the appeal in accordance with the overarching purpose of civil practice and procedure in s 37M of the Federal Court of Australia Act 1976 (Cth).
COSTS
Costs should follow event. Melbourne City Council and the State of Victoria should pay Ms Kerrison’s costs of and incidental to these applications.
Ms Kerrison’s application for indemnity costs is refused. There are no grounds for awarding costs on an indemnity basis.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon. Associate:
Dated: 21 May 2014
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