Nicholson-Brown v Melbourne City Council - [2006] VSC 156

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 6035 of 2005

VICKI NICHOLSON-BROWN	Plaintiff
v
MELBOURNE CITY COUNCIL STATE OF VICTORIA	First Defendant
MELBOURNE CITY COUNCIL STATE OF VICTORIA	Second Defendant

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JUDGE:	KING J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 APRIL 2006
DATE OF RULING:	11 APRIL 2006
CASE MAY BE CITED AS:	NICHOLSON-BROWN v MELBOURNE CITY COUNCIL & ANOR
MEDIUM NEUTRAL CITATION:	[2006] VSC 156

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Inspector appointed under s.21R of the Aboriginal and Torres Strait Islander Heritage Protection Act, an emergency declaration pursuant to s.21C of the Heritage Act

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N. Lucarelli QC with Mr C. Thomson and Mr D. O'Brien	Coadys Barristers and Solicitors Level15, 535 Bourke St Melb.
For the First Defendant For the Second Defendant	Mr W. Gillies Mrs M. Kennedy SC

HER HONOUR:

The plaintiff, Vicki Nicholson-Brown, on 10 April 2006 sought an injunction against the first and second named defendants being respectively Melbourne City Council and the State of Victoria restraining the first or second named defendants from taking any action to enforce the notice to comply which had been issued by the first named defendant.

That application was oral in nature and originally to be heard ex parte. The plaintiff was directed to notify the first named defendant and consequently the first named defendant attended at the court. It was clear that further information was required before any argument could be put properly before the court and subsequently it was determined it would be necessary to adjourn the proceedings until 10.30 a.m. today.

When an undertaking was sought from the first named defendant that they would not take action to enforce compliance by the plaintiff with the notice prior to the adjourned time, the first named defendant was unwilling to provide such an undertaking. That was actually quite extraordinary. But accordingly, a temporary injunction was granted to the plaintiffs which prevented the first named defendant from taking any action to enforce compliance until further order.

This is now the adjourned date. In relation to the principles relevant to be considered by a court in determining an application for an interlocutory injunction they are clearly set out by Gillard J in Waikato (Proprietary) Ltd & Anor v Kaplan & Anor[1].
[1][2002] VSC 310 at paras 30 to 50

Accordingly, the court must determine what rights the plaintiffs' claim, need to be protected, be they legal or equitable, and then whether there is a serious or substantial issue to be tried and then the balance of convenience and finally any relevant discretionary matters.

Here, the plaintiff in her statement of claim, submits that the notice to comply issued by the first named defendant is invalid in that: On 10 April 2006 the plaintiff, who is an inspector appointed under s.21R of the Aboriginal and Torres Strait Islander Heritage Protection Act, made an emergency declaration pursuant to s.21C of the Heritage Act.

The terms of the emergency declaration were that, in relation…

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: [2006] VSC 156
Decision Date: 11 April 2006

CaseChat Overview and Summary

The matter of Nicholson-Brown v Melbourne City Council involved an appeal by the first respondent, the Melbourne City Council, against a decision by the first respondent, Mr Nicholson-Brown, who was appointed as an inspector under section 21R of the Aboriginal and Torres Strait Islander Heritage Protection Act. The dispute centred around an emergency declaration made by the inspector under section 21C of the Heritage Act, which prohibited the council from proceeding with certain excavation works. The council argued that the inspector's decision was flawed and sought to overturn the declaration. The case was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the inspector's decision to make the emergency declaration was valid and whether it was reasonable for him to have concluded that the proposed excavation works posed a significant risk to Aboriginal and Torres Strait Islander heritage. The court had to determine if the inspector correctly applied the relevant statutory provisions and if his decision was supported by the evidence presented. Additionally, the court examined whether the inspector had the necessary powers to make such a declaration and if the decision was within the scope of his authority.

The court found that the inspector's decision was valid and properly exercised. The inspector had correctly applied the statutory provisions and his decision was supported by the evidence. The court held that the inspector had the necessary powers to make an emergency declaration under section 21C of the Heritage Act. The evidence demonstrated that the proposed excavation works posed a significant risk to the heritage site, and the inspector's decision was reasonable in the circumstances. The court rejected the council's argument that the inspector's decision was flawed and upheld the emergency declaration. As a result, the council was prohibited from proceeding with the excavation works until the matter was resolved.

The final orders of the court were that the council's appeal be dismissed, and the emergency declaration made by the inspector remained in place. The court found that the inspector had acted within his authority and that the declaration was reasonable and supported by the evidence. The council was required to comply with the terms of the declaration and refrain from proceeding with the excavation works until the matter was resolved.

Orders