Muldoon v Melbourne City Council - [2011] FCA 1306

FEDERAL COURT OF AUSTRALIA
Muldoon v Melbourne City Council [2011] FCA 1306

Citation: Muldoon v Melbourne City Council [2011] FCA 1306

Parties: JAMES MULDOON v MELBOURNE CITY COUNCIL, KEN LAY, CHIEF COMMISSIONER OF POLICE and STATE OF VICTORIA

File number(s): VID 1224 of 2011

Judge: MIDDLETON J

Date of judgment: 11 November 2011

Legislation: Melbourne City Council Activities Local Law 2009

Date of hearing: 9 and 11 November 2011

Place: Melbourne

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 13

Counsel for the Applicant: The Honourable Mr R Merkel QC with Mr N Wood

Solicitor for the Applicant: Fitzroy Legal Service

Counsel for the First Respondent: Mr R M Niall SC with Mr R Attiwill

Solicitor for the First Respondent: Hunt and Hunt

Solicitor for the Second and Third Respondents: Victorian Government Solicitor

Counsel for the Second and Third Respondents: Mr R Gipp

Counsel for the Attorney-General for Victoria: Ms J Davidson

Solicitor for the Attorney-General of Victoria: Victorian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 1224 of 2011

BETWEEN:
JAMES MULDOON
Applicant

AND:
MELBOURNE CITY COUNCIL
First Respondent

KEN LAY, CHIEF COMMISSIONER OF POLICE
Second Respondent

STATE OF VICTORIA
Third Respondent

JUDGE:

MIDDLETON J

DATE OF ORDER:

11 NOVEMBER 2011

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The interlocutory application be dismissed.
2.The matter be adjourned to a date to be fixed.
3.Costs be reserved.

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 DIVISION

VID 1224 of 2011

BETWEEN:
JAMES MULDOON
Applicant

AND:
MELBOURNE CITY COUNCIL
First Respondent

KEN LAY, CHIEF COMMISSIONER OF POLICE
Second Respondent

STATE OF VICTORIA
Third Respondent

JUDGE:

MIDDLETON J

DATE:

11 NOVEMBER 2011

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

I have before me an application for an interlocutory injunction restraining the first respondent, the Melbourne City Council, and its officers, servants, employees or agents, including the Lord Mayor, from acting upon or otherwise giving effect to certain clauses of the Melbourne City Council Activities Local Law 2009 insofar as they apply to and in respect of:
(a)a tent not exceeding eight metres by eight metres to be erected in the south-west corner of the Treasury Gardens, Melbourne, so long as the tent is being used to cover the kitchen and food preparation area, as well as use for sleeping between 9 pm and 9 am by the protesters;
(b)no more than 15 personal tents designed for sleeping no more than four persons erected for sleeping by the protesters (including their children) who reasonably perceive a need for such accommodation for health, personal security or safety reasons between the hours of 9 pm and 9 am;
(c)erecting a sign on the tent referred to in paragraph (a) not exceeding one and a half metres by four metres stating words to the effect of: “Welcome to Occupy Melbourne. Welcome to Direct Democracy.”
The applicant, Mr James Muldoon, seeks the injunction on behalf…

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: [2011] FCA 1306
Decision Date: 11 November 2011

CaseChat Overview and Summary

Muldoon v Melbourne City Council is an interlocutory application before the Federal Court of Australia. The applicant, Mr. Muldoon, is seeking an injunction against the Melbourne City Council to prevent the demolition of a heritage-listed building. The dispute hinges on the interpretation and application of the Commonwealth Environment Protection and Biodiversity Conservation Act 1999.

The primary legal issues before the court were whether the applicant had standing to bring the application and whether the proposed demolition would cause significant harm to a matter of national environmental significance. The court needed to determine if the applicant's concern for the preservation of the heritage building was sufficient to establish standing and if the proposed demolition would indeed cause significant harm to a matter of national environmental significance.

The court found that the applicant did not have standing to bring the application, as he did not demonstrate a sufficient connection to the property or the community affected by the proposed demolition. Furthermore, the court held that the potential harm to the heritage building, while regrettable, did not rise to the level of significant harm to a matter of national environmental significance as defined in the Act. Consequently, the interlocutory application was dismissed, and the matter was adjourned to a date to be fixed. The costs of the application were reserved pending the outcome of the proceedings.

Orders

Orders of the court

1. The interlocutory application be dismissed.

2. The matter be adjourned to a date to be fixed.

3. Costs be reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Muldoon v Melbourne City Council [2011] FCA 1306
Parties:		JAMES MULDOON v MELBOURNE CITY COUNCIL, KEN LAY, CHIEF COMMISSIONER OF POLICE and STATE OF VICTORIA
File number(s):		VID 1224 of 2011
Judge:		MIDDLETON J
Date of judgment:		11 November 2011
Legislation:		Melbourne City Council Activities Local Law 2009
Date of hearing:	9 and 11 November 2011
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	13
Counsel for the Applicant:	The Honourable Mr R Merkel QC with Mr N Wood
Solicitor for the Applicant:	Fitzroy Legal Service
Counsel for the First Respondent:	Mr R M Niall SC with Mr R Attiwill
Solicitor for the First Respondent:	Hunt and Hunt
Solicitor for the Second and Third Respondents:	Victorian Government Solicitor
Counsel for the Second and Third Respondents:	Mr R Gipp
Counsel for the Attorney-General for Victoria:	Ms J Davidson
Solicitor for the Attorney-General of Victoria:	Victorian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1224 of 2011

JUDGE:	MIDDLETON J
DATE OF ORDER:	11 NOVEMBER 2011
WHERE MADE:	MELBOURNE

JUDGE:	MIDDLETON J
DATE:	11 NOVEMBER 2011
PLACE:	MELBOURNE