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
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:

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
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:

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.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FCA 523
Decision Date

CaseChat Overview and Summary

Sara Louise Kerrison appealed against a decision of the primary judge in Muldoon v Melbourne City Council (2013) 137 ALD 257. The primary judge found that the respondents, the Melbourne City Council, the State of Victoria, the Chief Commissioner of Police, and the Attorney-General for the State of Victoria, were entitled to various costs orders against the applicants, Mr Muldoon and Ms Kerrison. The respondents sought security for their costs in relation to the appeal filed by Ms Kerrison, while the Chief Commissioner of Police and the Attorney-General for the State of Victoria did not seek security for their costs. The primary issues before the court were whether the appeal had prospects of success and whether there were public interest considerations that would justify an order for security for costs.

The court considered the applicable principles and the circumstances of the case. It found that the court has a wide discretion when considering an application for security for costs, and the discretion must be exercised judicially. The court should not be required to investigate in considerable detail the likelihood or otherwise of success in the appeal. The court also noted that a natural person will not be required to provide security merely because that person is impecunious.

The court found that Ms Kerrison’s impecuniosity was not disputed, and she would have to discontinue her appeal if there was an order for security for costs. The court also found that the appeal raised questions of public law and was a bona fide appeal by an impecunious individual against the State, State instrumentalities, or institutions. The court held that the appeal raised matters of general public importance quite apart from the interests of the parties and that this was a relevant consideration.

The court held that it was not appropriate for there to be an order for security for costs in favour of the Melbourne City Council and the State of Victoria. The court ordered that the applications for security for costs of the appeal filed by the respondents be dismissed and that the respondents pay Ms Kerrison’s costs of and incidental to these applications.

The court's decision was based on the nature of the appeal and the public interest considerations involved. The court found that the appeal had prospects of success and that the public interest considerations outweighed the respondents' concerns about incurring significant costs if the appeal were to be unsuccessful. The court also noted that the appeal raised important questions of public law and the right to protest, which were matters of general public importance. The court ordered that costs should follow the event, and the respondents should pay Ms Kerrison’s costs of and incidental to these applications. The court refused Ms Kerrison’s application for indemnity costs, finding that there were no grounds for awarding costs on an indemnity basis.

Orders