Lowe v Beauty Point (Tas) Pty Ltd and

[2024] TASSC 74

[2024] TASSC 74

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Lowe v Beauty Point (TAS) Pty Ltd and Beauty Point Trading Pty Ltd [2024] TASSC 74
PARTIES:	LOWE, John Robert
v
BEAUTY POINT (TAS) PTY LTD and
BEAUTY POINT TRADING PTY LTD
FILE NO:	2452/2024
DELIVERED ON:	10 December 2024
DELIVERED AT:	Hobart
HEARING DATE:	28 November 2024
JUDGMENT OF:	Marshall AJ
CATCHWORDS:

Equity – Equitable remedies – Interlocutory injunctions – Serious question to be tried – Other particular cases – Serious issue to be tried as to whether s 12 of LUPA Act applies to make plaintiff's occupation lawful – Balance of convenience overwhelmingly favours plaintiff.

Aust Dig Equity [1158]

Cases:
Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Beecham Group Limited v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
Bullock v The Federated Furnishing Trades Society of Australasia (1985) 5 FCR 464
Epitoma Pty Ltd v Australasian Meat Industry Employees Union (1984) 54 ALR 730

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1

Legislation:
Anti-Discrimination Act 1998

Land Use Planning and Approvals Act 1993 (Tas), s 9, s83, s12

REPRESENTATION:

Counsel:

Plaintiff:	Dr A Best
Defendants:	B McTaggart SC, G O'Rafferty

Solicitors:

Plaintiff:	Bleyer Lawyers Pty Ltd
Defendants:	Leonard Fernandez Barristers & Solicitors

Judgment Number:	[2024] TASSC 74
Number of paragraphs:	60

Serial No 74/2024 File No 2452/2024

JOHN ROBERT LOWE v BEAUTY POINT (TAS) PTY LTD and

BEAUTY POINT TRADING PTY LTD

REASONS FOR JUDGMENT MARSHALL AJ
10 December 2024

1             The matter the subject of these Reasons for Judgment is an interlocutory application by Mr John Lowe ("the plaintiff") in which the plaintiff seeks an order restraining the defendants from evicting him from site 43 at the caravan park at 36 West Arm Road, Beauty Point. He also seeks orders restraining the defendants from removing, or destroying, or otherwise dealing with any of his property at the caravan park, or departing from the terms of a document dated 27 November 2019, which is entitled "Rules for Long Term Residents of Beauty Point Tourist Park".

2             Those orders are sought upon the plaintiff giving the usual undertakings to damages and are requested by the plaintiff to operate pending the hearing and determination of the substantive proceeding.

The parties and the substantive proceeding

3             The plaintiff is a resident at the Beauty Point Tourist Park ("the Park"). The terms and circumstances relevant to his occupation of site 43 at the Park will be discussed later in these reasons. The first defendant, Beauty Point (TAS) Pty Ltd, is the registered proprietor of the land located at 36 West Arm Road, Beauty Point. It is also the operator of the Park. The second defendant, Beauty Point Trading Pty Ltd, is the manager of the Park and the registered holder of the business name "Beauty Point Tourist Park".

4   Mr John Manticas is a director of the second defendant and an employee or agent of the first

defendant.

5            In his statement of claim, dated 23 August 2024, the plaintiff pleads an entitlement to occupy site 43 at the Park in accordance with an agreement made with one or both defendants on 29 July 2022, or alternatively on a long-term basis in exchange for a fortnightly payment. The terms of the alleged entitlement are discussed later in these reasons.

6             In addition to relying on the agreement referred to in the previous paragraph, the plaintiff asserts an entitlement to occupy the site in reliance on an equitable estoppel. He contends that the defendants represented to him that he would have a right to occupy the site in perpetuity. He further contends that he would suffer detriment if the defendants were permitted to resile from that representation.

7             Further, the plaintiff asserts in his statement of claim that the defendants are in breach of the Anti-Discrimination Act 1998 in purporting to terminate their agreement with the plaintiff by reason of his political belief regarding the rights of residents in caravan parks.

8             The defendants deny that the plaintiff has an arguable case against them. They say that the occupation of site 43 by the plaintiff is pursuant to an illegal and unenforceable contract given the provisions of the relevant State planning scheme.

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The plaintiff and the Park

9             The plaintiff is a 64 year old man who retired from work in July 2022. In his professional life he mostly worked as a police officer. He served in the Tasmanian Police Service, the Queensland Police Service and with the Australian Federal Police.

10           In July 2022, the plaintiff chose to live, in his retirement, at the Park. He chose the location as it enabled him to have a relaxed lifestyle, including fishing with friends in a tributary to the Tamar River. In that month, he purchased a structure at site 43 and/or the right to reside at site 43 in the structure. He did not purport to purchase any rights to the land on which the structure stood, which at all material times remained the property of the first defendant.

11           The people who previously occupied the structure at site 43 were Mr Doug Brain and his wife. The plaintiff negotiated to buy the structure and the right to occupy it from the Brains for $82,000. The full price was paid by the plaintiff to the Brains by 21 July 2022.

12           On 18 July 2022, Mr Manticas, on behalf of one or both defendants, emailed the plaintiff regarding his occupancy of site 43 and his purchase of the structure on the site. Mr Manticas attached the fee structure for the site, a copy of the "Park Rules" and a contact form. He noted that the fee was $280 per fortnight, based on two occupants and that there was also a $1,250 administration fee payable to park management "at the time of the changeover". Further information was sought from the plaintiff before he was "approved as a resident". These matters included a copy of his driver's licence, a national police check, a credit check and a real estate referral.

13           The Park Rules supplied to the plaintiff by Mr Manticas were entitled "Rules for Long Term Residents of Beauty Point Tourist Park" and carried the notation "Updated 27 November 2019". I will refer to these rules as the "2019 rules".

14           The 2019 rules defined "Long Term Resident" as "a person who pays a licence Fee for the continuous use of an allotted Site, 7 nights per week, for the term of the licence in clause 2." Clause 2 is headed "Licence". Clause 2.1 of the 2019 rules provides that:

"BPTP [the first defendant] grants to the long term resident, a licence of the Site on a fortnightly basis, subject to these terms. Unless terminated, the licence will renew at the end of each fortnight for a further fortnight without the requirement for the parties to enter into a further agreement."

Clause 10 of the 2019 rules gave the first defendant the right to approve the sale to any new resident of a caravan "and any annexe or other improvements" and for there to be levied an administration fee on the proposed new resident.

15   Clause 14 of the 2019 rules is headed "Permitted Variations". Clause 14.1 provides that:

"BPTP [the first defendant] may make variations to these rules or the licence fee payable at any time by 14 days' notice in writing to the long term resident. The change will take effect immediately from the expiry of the notice period without the requirement for any further agreement."

Clause 14.2 provided that:

"Where a Long Term Resident requests that these rules be varied as it applies to them, such variation would only take affect (sic) once BPTP and the Long Term Resident have agreed in writing to the variation."

16   Clause 16 of the 2019 rules is entitled "Vacation of Park". It provides:

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"Should the Long Term Resident wish to permanently vacate the Site, they must

remove all their items from the Park and leave."

Clause 16.2 provides that:

"Unless agreed with BPTP [the first defendant] the Site must be left in a clean and tidy
state, restored to vacant land."

17          In an email sent to the plaintiff on 29 July 2022, "the Team at Beauty Point Tourist Park" noted the plaintiff's arrival at the Park as at "Saturday, 30 July 2022" and the departure date as "Monday, 31 July 2073". By 31 July 2073, if still alive, the plaintiff would be 102 years old.

18   All invoices received by the plaintiff from the first defendant included a notation that he was a

long term resident.

19           The plaintiff commenced to reside at site 43 on 30 July 2022. Since that time, in reliance on his status as a "long term resident", he has made improvements to the site. Those improvements were made with prior approval from Mr Manticas. He estimates the total cost of the improvements up to 23 August 2024 to be just over $5,000. The most expensive item being the installation of reverse cycle air conditioning at an approximate cost of $2,900. The plaintiff gave evidence that the structure on site 43 is fixed to the ground. The caravan component is fully incorporated into the building structure and cannot be towed away. The caravan is timber framed and plaster boarded, with two very large openings on one side and one on the other side, one being about the width of a double door opening into an annexe on concreted-in posts and rafters, and one made to form a recess for a wardrobe. It is constructed as a tiny home. The common roof expands across all three sections of the building. The plaintiff gave the following evidence in his affidavit in support of the application for interlocutory relief:

"When I first moved in, the floorboards had rotted away, so I replaced the floorboards and resealed them. When I bought it, the caravan was fixed to the ground and does not have any wheels or axle attached. I believe it has been that way for some 20 years. The three components, being the caravan, the two small rooms constructed on either side of the chassis of the caravan as extensions, make up one building."

20           On 13 March 2024, Mr Manticas, in his capacity as "Managing Director" of the Park, and Mr Ralph Shannon, a Director of the first defendant, sent a notice to the plaintiff and others, addressed to "Dear Occupants". The notice referred to "some recent inaccuracies that have been circulating concerning Beauty Point Tourist Park". In the second paragraph of the notice, the following was stated, amongst other things:

"Our intention is not to remove anybody unless there is a breach of our established rules and regulations which we enforce strongly for the sake of all. We value the community we have built here and we strive to maintain a harmonious and respectful environment for all."

The notice stated in the penultimate paragraph that:

"We want to emphasise that there are no plans to redevelop or change our current business model. We remain dedicated to providing the same excellent services and amenities that our community has come to expect and appreciate."

21          On 28 June 2024, the plaintiff received, by email, a letter from Mr Manticas addressed to "Dear Guest". It said as follows:

"Pursuant to clause 14.1 of the current rules of the park dated November 2019, we
hereby give 14 days' notice of an update to the terms and conditions of the park.

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The new terms and conditions which will come into effect as of July 13, 2024 are attached to this email. The new terms and conditions replace all prior sets of rules and supersede (sic) them entirely."

22   The "new terms and conditions" included in clause 1, under the heading "Agreement", the

following:

"If upon entry to the Park you did not accept these Terms and Conditions you and any vehicle in which you entered must immediately leave the Park. By remaining in the Park after entry you accept and agree to be bound by these Terms and Conditions. 'You' and 'your' are defined earlier in the document to mean 'the person or persons who is or are accessing or using the Park including site users and park users'. 'Site user' is also defined. That definition is 'persons who may be granted a non-proprietary licence by us to use certain site(s) within the Park for a Fee.'"

23   Clause 2 of the new Terms and Conditions provides as follows:

"Nonproprietary licence

You agree that any use of a Site is a nonproprietary licence terminable at will by us with or without cause orally or in writing, and is not, has not ever been, and will never be a lease or any other form of proprietary interest."

24   Curiously, clause 9 provides:

"You agree that we are not bound by any of these terms and conditions and that we may change or amend them at any stage. You agree to hold us harmless in respect of any alleged breach by us of the same, and in respect of any negligence, and that these terms and conditions may be plead (sic) as a bar to any action or proceedings against us."

25           On 15 July 2024, the plaintiff received from the "Beauty Point Tourist Park" a notice that stated the plaintiff's licence to stay at the Park will be revoked as at 5pm on 13 September 2024. He was asked to vacate the premises by that time. He was also asked to restore the site to one resembling a vacant lot, with all possessions, including the caravan and annexe, removed. He was informed that a final inspection of the site would be conducted to ensure that he had left it in good condition and that a failure by him to do so may result in an invoice being given to him for the costs incurred in restoring the site to that condition.

26           The plaintiff gave evidence that on 15 July 2024, two other long term residents at the Park informed him that they had also received a letter from the Park, purporting to terminate their long term residency at the Park.

27           In mid-March 2024, a residents' association was formed. It was called the Beauty Point Tourist Park Residents Association Inc. The plaintiff was elected as President. One committee member was Mr Steve Shaw. On 24 June 2024, the plaintiff and Mr Shaw had a meeting with three politicians in which they raised concerns about the lack of legislation regulating permanent tenancy in caravan parks in Tasmania. Those politicians were all members of the Tasmanian Government. They were Mr Michael Ferguson MP (the then Deputy Premier), Ms Joanne Palmer MLC and Ms Madeline Ogilvie MP.

28          After receiving the 15 July 2024 eviction notice, the plaintiff had a telephone conversation with Mr Ferguson, in which he raised concerns about the purported eviction.

29           On 26 July 2024, the plaintiff received an email from Mr Ferguson which referred to a meeting Mr Ferguson had with Mr Manticas on that day. The email referred to an outcome of the meeting being that "the Park owners have agreed to allow your existing assets to be left in place until such time as any

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new regulatory model is considered and/or enacted." At 10.41am on 27 July 2024, the plaintiff received
an email from park management, stating:

"As a result of the consultation with the Deputy Premier, we have put forward to you and to two others, our only offer. We will not be negotiating any further nor communicating beyond this email. There are no alternatives as to what is on the table."

Then, at 12.32pm, on Sunday, 28 July 2024, the plaintiff received an email from a person called "Susan" at Beauty Point Tourist Park, stating as follows:

"Hi John, please see attached agreement allowing you to keep your caravan/annexe on
site after your departure while legislation is being reviewed."

The email then requested the plaintiff to accept the offer by coming to the office of the Park to sign it. The attached agreement, dated 29 July 2024, provided that the parties involved were the defendants on the one hand, and the plaintiff on the other. The agreement provided that the plaintiff acknowledge that he would leave the park on or before 13 September 2024, as stipulated in the current notice of termination and that he would be restricted from entering the park, even as a visitor, after 13 September 2024. He was requested to desist from "all antagonistic actions or behaviour, including publishing any defamatory content or anything that could harm the reputation from our business." The proposed agreement also provided that, "no further actions will be brought against our company" and one clause, being clause 5, was headed "Non-compliance clause". It provided:

"If any of these conditions are not complied with, we will remove the caravan and
annexe in line with the current terms and conditions of our park."

30   There was a heading in the offer agreement from the park management, entitled "Legislative

Review". It said:

"We will reconvene upon the determination of any new legislation to decide upon a potential pathway if the opportunity presents to your caravan and annexe to remain on our property under the new legislative arrangement."

31   Another heading was "Sale Optioning". It provided:

"Throughout this period, you are free to attempt to sell the caravan and annexe for
removal should you chose not to wait for legislative reform."

32   The final provision related to Council action. It said:

"We also agree to allow the caravan and annexe to remain in situ on the condition that
the Council takes no action against the placement of it within our property."

33           The "Susan" referred to earlier as the author of the 28 July 2024 email was Ms Susan Byrnes. At about 2.00pm on 29 July 2024, the plaintiff received a telephone call from Ms Byrnes, who informed him that the offer contained in the proposed 28 July 2024 agreement, had a deadline of close of business on 31 July 2024.

34   On 30 July 2024 at 5.48pm, the plaintiff emailed Mr Manticas saying the following:

"As you may appreciate for myself and John Dennis, this is not a decision that is easy
to make and we believe we had considerably more time to make a judgment.

The very sudden advice of the extremely short deadline has in itself added to the stress of the situation.

I am asking on behalf of John Dennis and myself that you extend your deadline for a further 14 days to allow us a fair and reasonable time to make this decision.

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We are not rejecting the offer but your deadline being close of business tomorrow requires a quick reply to this request.

Regards,

John Lowe"

35 In response, the plaintiff received a very short email from Ms Byrnes, saying as follows:
"Nothing has changed. You have until 5.00pm today or the offer is off the table".

That email was sent at 9.28am on 31 July 2024.

36 On 31 July 2024, at 1.13pm, the solicitor for the plaintiff sent an email to the defendants on instructions from the plaintiff. The letter referred to the long-term residency of the plaintiff, pursuant to the 2019 rules and alleged that the Park had breached its agreement with the plaintiff and stated that the plaintiff may seek relief. The letter also referred to the variation power in clause 14.1 of the 2019 rules as not contemplating a variation which is unfair within the Australian Consumer Law. The letter asserted that the 2019 rules still govern the relationship between the parties. It referred to a claim that the plaintiff may have against the defendants in equitable estoppel. It also referred to a possible claim under the Anti-Discrimination Act by reference to the 15 July 2024 email having been sent to the plaintiff on the same day as the Park confirmed its policy of "targeting individuals at the site who held and expressed certain opinions about the entitlements of residents of caravan parks." The letter concluded that:

"In light of the above, we intend to commence proceedings seeking relief in the Supreme Court of Tasmania and to seek urgent injunctive relief until the matter can be determined."

37          At 5.05pm on Wednesday, 31 July 2024 the plaintiff received, by email, a letter from the Park, which was in the following terms:

"I am writing to inform you that as of 5.00pm on 31 July 2024, we have not received any acceptance to the very generous offer that was put forward to allow your caravan and annexe to remain in situ. Consequently, the offer presented on Saturday following our discussions with the Deputy Premier is now withdrawn and no longer available to you.

Please be advised that the terms of the termination remain valid and will be enforced.

You are required to completely vacate our property, including removal of your caravan and annexe and any personal property on or before 13 September 2024.

Should you be found on our property beyond this date, the police will be called and you will be treated as a trespasser. Additionally, our company will begin making the necessary arrangements to remove any property that remains within our business or on our lands beyond 13 September 2024."

38           The plaintiff gave evidence that he feared that if the defendants were not restrained, the subject matter of the proceeding would be destroyed, being his home at site 43. That is because the letter purporting to evict him said that the site must be "restored to a site resembling a vacant lot" by 13 September 2024. Given the structure on site 43 can only be restored to a vacant lot by demolition, that would mean the demolition of his home.

Initial request for an interlocutory injunction.

39           At about 4.16pm on 23 August 2024, the solicitor for the plaintiff sent an email to the email address she had for Beauty Point Tourist Park and also an email to Mr Leonard Fernandez, a solicitor

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who she knew had acted in other matters for the first defendant. The email attached unsealed copies of the writ in this proceeding, endorsed with the statement of claim, an interlocutory application and submissions in support of the interlocutory application, a letter of urgency and an affidavit, affirmed by the plaintiff on 23 August 2024. At about 4.35pm on 23 August 2024, the solicitor sent another email to the Park and Mr Fernandez, attaching sealed copies of the documents referred to above and advising that the interlocutory application had been listed for hearing at 10.00am on 26 August 2024.

40           On 26 August 2024, the application for an interlocutory injunction came before Associate Justice Daly. In that application, the plaintiff sought the same relief that he seeks now before the Court. Associate Justice Daly, on 26 August 2024, for reasons published on 3 September 2024, granted relief to the plaintiff in the terms sought by him, which are exactly the same terms as sought in the proceeding currently before the Court. That order was made in circumstances where, at paragraph 2 of his Honour's reasons, his Honour said:

"At the conclusion of the hearing, an interim injunction was granted until final determination of the action, or further order (emphasis supplied), restraining the defendants, including by their officers, servants or agents, from:

……"

Thereafter, his Honour set out the relief sought by the plaintiff.

41          At the concluding paragraph of his Honour's reasons, published only to the parties on 3 September 2024, the following is said:

"In summary, I am satisfied that the material placed before the Court by the plaintiff together with the submissions made by counsel for the plaintiff, satisfy me that there are serious questions to be tried. I am also satisfied that the balance of convenience favours the plaintiff, especially given that the Court has the plaintiff's undertaking."

42           Although expressed to be an order that would apply until the final determination of the action, as stressed above, the order also applies until further order. Usually, in situations where interim injunctions are granted on an ex parte basis, the Court will set a further date for the hearing of an application for the interim injunction to be extended on an interlocutory basis, pending the hearing and determination of the proceeding. That is not what occurred in this case. Instead of the defendant seeking a listing of the matter before the Associate Justice to seek to have the matter brought on to discharge the interim junction, or should they be unsuccessful, for the interlocutory injunction extended to a trial, the defendants took the course of seeking to appeal the decision of Associate Justice Daly to grant the relief he gave to the plaintiff on the basis that they were not heard by the Associate Justice.

43           The appeal came before the Court as is currently constituted on 26 November 2024. On that day, the Court acceded to a request by the defendant to set aside the order of Associate Justice Daly on the basis that they were not represented at the hearing because they did not have any or sufficient notice of the hearing.

44           The Court informed the parties that instead of sitting on Thursday, 28 November to hear the defendants' appeal from the order of Associate Justice Daly, made on 26 August 2024, that the Court would entertain an application by the plaintiff for an interlocutory injunction to apply, if granted, until the hearing and determination of the proceeding as distinct from the interim injunction granted by Associate Justice Daly. The plaintiff resisted that course initially, but given the view of the Court, as is currently constituted, that the defendants were not properly notified or served with the application for relief before Associate Justice Daly, the plaintiff's legal representatives ultimately concurred with the position sought by the defendants that the hearing for an interlocutory injunction would commence afresh before the Court as is currently constituted on 28 August 2024. The order of Associate Justice Daly of 26 August 2024 was set aside. The defendants' appeal against his Honour's order was dismissed

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by the Court as is currently constituted on 26 August 2024, noting that it was done without the adjudication of its merits, seeing that it was effectively overtaken by the provision of an interlocutory hearing on 28 November 2024. The application for an interlocutory injunction was listed for 10.00am in Launceston on 28 August 2024 on the condition that the defendants gave an undertaking to comply with the previous orders made by Associate Justice Daly on 26 August 2024, pending the hearing and determination of the application for interlocutory relief, to be heard on 28 November 2024 by the Court as is currently constituted.

45           On 28 November 2024, the application for an interlocutory relief was heard by the Court as is currently constituted. The evidence before the Court on the application for interlocutory relief consisted of an affidavit filed by the plaintiff and exhibits tendered by the defendants.

46           The plaintiff relied on the same affidavit, which he had filed in the proceeding before Associate Justice Daly in his application for interlocutory relief before his Honour, as he did in the proceeding before the Court as is currently constituted. That was the extent of the plaintiff's evidence in this current application. The defendants' evidence consisted of two documents, both documents were tendered as exhibits in the proceeding on 28 November 2024. The first document was a result of a title search, which showed that the first defendant is the registered proprietor of the land at the Park, including site 43. The other exhibit showed that the Park comes under the Tasmanian Planning Scheme and the West Tamar Local Provisions Schedule at Zone 23, being environmental management.

47   The purpose of the tender of those documents by the defendants was:

(i)          to show that the first defendant owns the land on which the plaintiff's caravan and annexe is located, at site 43; and

(ii)         to show that the Park is subject to a planning scheme.

As will be demonstrated later in these reasons, the defendants rely on the planning scheme to assert that occupation by the plaintiff at site 43 is illegal and therefore that the plaintiff does not have a serious issue to be tried in this proceeding.

The test for interlocutory injunctions

48           It is not in contest that the test for the ordering of an interlocutory injunction is a two faceted one. First, the Court must be satisfied that there is a serious question to be tried in the proceeding. In other words, that the claim in the proceeding is not frivolous, vexatious or bound to fail. Unless the material available to the Court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at trial, the Court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief sought. In Bullock v The Federated Furnishing Trades Society of Australasia (1985) 5 FCR 464 at 472, Woodward J had the following to say in respect to the consideration of the question of balance of convenience after citing, with approval, a decision of the Full Court of the Federal Court in Epitoma Pty Ltd v Australasian Meat Industry Employees Union (1984) 54 ALR 730 at 734. At 472 in Bullock Woodward J (as a member of the Full Court in that case) said as follows:

"The only point I would wish to add for myself is that when it becomes necessary to consider the balance of convenience, it is, I believe quite proper to continue to bear in mind the apparent strength of the applicant's case, the two legs of the test need not to be considered in isolation from each other. Thus, an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises 'a serious question to be tried') may still attract interlocutory relief if there is a marked balance of convenience in

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favour of it. This view received support from the High Court in Beecham's case, at the

page cited above."

The reference to Beecham Group Limited v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 is to a

High Court case relied on by the Full Court in Epitoma.

Beecham was referred to with approval by Gummow and Hayne JJ in Australian Broadcasting
Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [65]. Their Honours had this to say:

"The relevant principles in Australia are those explained in Beecham Group Limited v Bristol Laboratories Pty Ltd. This court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications, the court addresses itself to two main enquiries and continued:

'the first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remained as it is, there is a probability at the trial of the action the plaintiff will be held to be entitled to relief …the second enquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused, outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.'

By using the phrase 'prima facie case', their Honours did not mean the plaintiff must show that it is more probable than not that the trial of the plaintiff will succeed. It is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the court was referring to the notion of prima face case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first enquiry, the court continued in a statement of central importance for this appeal:

'How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks'."

Serious issue to be tried?

49           The defendants concede, through their counsel, that should their submission that the continued occupation of site 43 by the plaintiff is illegal not be accepted on the evidence before the Court, then there would be a serious issue for the Court to determine based on the non-statutory relief sought by the plaintiff. In other words, the defendants concede that in the event that their claim that the occupation of site 43 by the plaintiff is illegal beyond argument, does not succeed, the plaintiff would be considered to have raised a serious issue to be tried based on his submissions relating to breach of contract and equitable estoppel. The defendants claim that the plaintiff does not have any entitlement to seek interlocutory relief on its statutory claim on the Anti-Discrimination Act. It is unnecessary for the Court, at present, to go into that matter other than to observe that statutory rights in the past have been the subject of injunctive relief. An example is the case of Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1.

50           So the essential task before the Court, at the moment, is to consider the claim made by the defendants that the plaintiff is not entitled to any relief because he is in illegal occupation of site 43. If it is clear beyond argument that the defendants are correct in their view about the status of the plaintiff's occupation of site 43, the Court would not grant an interlocutory injunction because there would be no serious issue to be tried in the proceeding. The Court now turns to consider whether the claim by the defendants that the plaintiff has no right to remain on the site and that he is, in effect, in illegal occupation.

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The planning scheme

51 The defendants submit that the plaintiff's occupation at site 43 is illegal based on the following considerations. Under s 9 of the Land Use Planning and Approvals Act 1993 (Tas), (the "LUPA Act") the Tasmanian Planning Scheme is brought into existence. It comprises State planning provisions and certain local provisions. Under s 83 of the LUPA Act, a court must take judicial notice of the Tasmanian Planning Scheme without formal proof of its contents. The current State planning provisions, relevant to the Park, became effective on 2 March 2017. Under the general scheme of the LUPA Act, the current State planning provisions may prohibit the use of any land. A person must not use or develop land in any way contrary to the State planning provisions. The planning authority, as in a local government council, is obliged to enforce observance of the State planning provisions. The current Tasmanian Planning Scheme, as it applies to the Park, does not permit more than one residence to be in the Park. Prior to the current scheme, the scheme that applied to the Park was the West Tamar Planning Scheme, which came into operation in 2013. It, according to counsel for the defendants, prohibited residential occupation under that scheme in the area covered by the Park.

52 An exception to the application of a planning scheme is provided in circumstances where s 12 of the LUPA Act applies. Under that provision, nothing in a provision of the Tasmanian Planning Scheme in relation to a local government area, is to be taken to prevent the continued use or development of any land for the purposes for which it was being lawfully used prior to the relevant provision of the Tasmanian State Planning Scheme coming into existence. Section 12(1)(b) specifically refers to existing uses and developments such as a building in the relevant area that was erected prior to the coming into effect of a planning scheme being able to be continued to be used in the way it was previously used before the planning scheme came into effect. Counsel for the defendants referred to the fact that the 2013 West Tamar Planning Scheme, which operated prior to March 2017, prohibited occupation of the Park in the way that the plaintiff has occupied it. However, the only evidence about the existence of a residence on site 43 in the past, is from the plaintiff who has given evidence that he believes that the structure that he commenced to occupy in July 2022 had been there for some 20 years. There is no evidence to the contrary. The second defendant, as manager of the Park, would be in a better position to have records in relation as to when structures were erected at the Park in the past, than someone who has only commenced to live in one of those structures in the last two years. If the plaintiff was in the structure prior to 2013, there is no reason to suggest that his occupation became illegal after 2013 having regard to the provisions of s 12(1)(b) of the LUPA Act.

53           The question for the Court, for the current discussion, is whether there is an arguable case that the structure which the plaintiff commenced to occupy on 31 July 2022 was a structure which was in place before 2 March 2017, or prior to the commencement of the operation of the West Tamar Planning Scheme in 2013. As previously indicated, the only evidence currently before the Court in this matter regarding the length of time during which the structure occupied by the plaintiff has been standing, is his evidence that it was built in its current form about 20 years ago. That would place the building of the structure in its current form as at in, or about November 2004, well before 2 March 2017, and well before 2013. Whatever complaint may be made about the lack of specificity of that evidence, it is the only evidence before the Court as to the prior use of the structure which the plaintiff occupies at site 43.

54           Further, the relevant current planning scheme prohibits more than one residence to be in the Park. Although there is evidence concerning other long-term residents at the Park, there is no evidence before the Court as to how long those persons have been in long-term residence, or whether their structures were built after the structure currently occupied by the plaintiff was erected. Moreover, the defendants are in the best position to source any records as to the timing of the building of any structures at the Park, albeit, including a time when the Park was in the control and ownership of other people. There is little utility in giving no weight to the evidence of the plaintiff about the time in which he thought the structure he was occupying has existed. As a former policeman across three different police services, it would not be fanciful to suggest that he was a person who would pay regard to detail such

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as the age of the structure in which he resides. There is no other evidence on the matter of any utility and there is a complete absence of evidence about the timing of the building of the structure at site 43 from the defendants who would be better placed to give the Court information regarding that matter.

55 Having regard to the foregoing, I am of the view that there is an arguable or prima facie case raised by the plaintiff in response to the claim that he is occupying the site illegally. In my view, there is a serious issue to be tried as to whether s 12 of the LUPA Act applies to make the plaintiff's occupation of site 43 lawful. This is a matter which can be further examined at trial. As counsel for the defendants have conceded that otherwise a serious question to be tried is raised by the non-statutory matters put forward by counsel for the plaintiff, the Court is of the view that there is a serious issue to be tried in this matter.

Balance of convenience

56 The balance of convenience overwhelmingly favours the plaintiff. If the undertaking given by the defendants, after the setting aside of the interim injunction of Associate Justice Daly is not extended by order of the Court in the form of an interlocutory injunction, the defendants would be at liberty to force the plaintiff to, in effect, demolish or abandon his residence at site 43. Thereby, the subject matter of the litigation would be destroyed. The defendants submit that the balance of convenience favours them because otherwise they would be permitting illegal occupation on their property and themselves be in breach of the LUPA Act. Any action taken against the defendants for alleged breach of the LUPA Act would have to be considered in the context of the existence of an order of the Court preventing the defendants, at least on an interlocutory basis, from taking steps to remove the plaintiff's structure at site 43. Whatever the inconvenience to the defendants, as a result of the continuation of this proceeding, it pales into insignificance when compared to the inconvenience that the plaintiff will suffer if his home is destroyed or if he is unable to occupy it.

57   In my opinion, this matter falls squarely into the category of cases discussed by Woodward J in

Bullock at [472] where his Honour said:

"A more doubtful claim (which nevertheless raises 'a serious question to be tried') may still attract interlocutory relief if there is a marked balance of convenience in favour of it."

58           In this matter, the Court is of the view that there is a serious question to be tried in the proceeding and that the balance of convenience favours the plaintiff. Accordingly, it is appropriate to grant interlocutory relief notwithstanding that the Court, on the evidence as it now stands, is unable to say that the claim of the plaintiff is a particularly strong one. In saying so, the Court still considers that it is sufficiently arguable to raise a serious question to be tried.

Relief

59

It should be noted that in making order 1(c) below, the Court has formed the view that there is a serious issue to be tried regarding the legality of the attempt of the defendants to use the amendment power in clause 14 of the 27 November 2019 rules to, in effect, completely change and reclassify the relationship between the parties in a fundamental way under purported new rules to take their place.

60   Having regard to the foregoing, the Court makes the following orders:

(1) Upon the plaintiff giving the usual undertaking as to damages, pending the hearing and determination of the proceeding, the defendants, including by their officers, servants or agents, are restrained from:

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(a)	evicting the plaintiff from site 43 at the caravan park at 35 West Arm Road, Beauty Point ("the Park");
(b)	removing, destroying or otherwise dealing with any of the plaintiff's property situated on site 43 at the Park; and
(c)	otherwise departing from the terms and conditions of the document entitled "Rules for Long Term Residents of Beauty Point Tourist Park (updated 27 November 2019)".

(2)	Costs reserved.
(3)	Liberty to apply.