Love v Thwaites - [2003] VSC 22

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PRACTICE COURT

No. 4504 of 2003

THOMAS JAMES LOVE	Plaintiff
v
THE HONOURABLE JOHNSTONE WILLIAM THWAITES & ORS	Defendants

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JUDGE:	NETTLE J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 February 2003
DATE OF RULING:	14 February 2003
CASE MAY BE CITED AS:	Love v Thwaites & Ors
MEDIUM NEUTRAL CITATION:	[2003] VSC 22

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr H. Carmichael	James T. Stevens
For the Defendants	No appearance

HIS HONOUR:

I have before me an application for urgent ex-parte interim injunction to restrain the thirdnamed defendant from disturbing the historic complex known as Clonnard Homestead (as identified in the registration of Heritage Council and by the National Trust of Australia (Victoria)). The grounds of the application are in effect set out at some length in the statement of claim endorsed upon the writ, but in short it is contended that the compulsory acquisition of the homestead which preceded the threatened demolition is void. It is contended that decision to acquire was based upon improper considerations and further or alternatively that the decision-maker failed to take into account relevant considerations and further or alternatively that, however it may be construed, it is not a decision that a reasonable decision-maker properly informed could properly have made.

The facts upon which the application is based are complex. They involve the compulsory acquisition of land by the State of Victoria for the purpose of constructing a freeway.

The plaintiff says that in making the decision to acquire the land for that purpose the decision-maker failed to have proper regard to an obligation to preserve a rock resource which is upon and around the land, misconstrued the effect of the refusal of an application for extractive industries permit made by the plaintiff, and either took into account as an irrelevant consideration or gave altogether improper weight to the competing interests of the proprietor of other land upon which the freeway might have been constructed, amongst other considerations.

I should say that I am by no means convinced that there is a great deal of strength in any of the grounds of invalidity which are asserted, but having regard to the submissions which have been made to me this afternoon by Mr Carmichael of counsel I conclude that there is at least a serious question to be tried.

The application has been supported to some extent by viva voce evidence given by the plaintiff, and he has deposed not only to the special significance of the land to him, by reason of its history and his family's long connection with it, but also to irreparable harm to extractive industries operated on adjacent land if the homestead is demolished.

I was for some time concerned that the application has been made ex parte without notice, but bearing in mind the correspondence that has passed between the solicitor for the plaintiff and some of the defendants in the weeks leading…

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.

Continue reading Love v Thwaites

Details

AGLC: Love v Thwaites [2003] VSC 22
Case: [2003] VSC 22
Decision Date: 14 February 2003

CaseChat Overview and Summary

The case of Love v Thwaites involved Thomas James Love, the plaintiff, who sought an urgent ex-parte interim injunction to prevent the third defendant, Roads Corporation, from disturbing the historic Clonnard Homestead. The application was made on the grounds that the compulsory acquisition of the homestead was void, alleging improper considerations were taken into account in the decision-making process, relevant considerations were not considered, or the decision was not one that a reasonable decision-maker would have made. The acquisition was part of a project to construct a freeway. The plaintiff argued that the decision-maker failed to properly consider obligations to preserve a rock resource, misunderstood the impact of a rejected application for an extractive industries permit, and improperly weighed the interests of another landowner. Nettle J found that there was at least a serious question to be tried, and granted the injunction on the basis of the urgency and the plaintiff's evidence of special significance of the land and potential harm to adjacent extractive industries if the homestead was demolished.

The court had to decide whether there was a serious question to be tried regarding the validity of the compulsory acquisition decision and whether the urgency justified an ex-parte injunction without notice to the defendants. The plaintiff argued that the decision was flawed due to improper considerations, failure to consider relevant factors, and the decision itself. The court also considered the plaintiff's capacity to meet any potential damages order and his willingness to serve the necessary documents. Nettle J concluded that the urgency and the plaintiff's evidence warranted an ex-parte injunction, and granted it subject to the plaintiff providing an undertaking as to damages and serving the required documents.

The court granted an interim injunction until 10.30 am on 18 February 2003, restraining the third defendant from disturbing the Clonnard Homestead. The hearing of the plaintiff's application for interlocutory injunction and other orders was adjourned to 10.00 am on 18 February 2003. The plaintiff was required to provide an undertaking as to damages, serve the writ and statement of claim, and serve an affidavit and copies of other documents by 10.00 am on 17 February 2003. This decision allowed the plaintiff to temporarily prevent the demolition of the historic site while the court considered the merits of the case.

Orders