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

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:

1. 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.

1. 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.

1. 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.

1. 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

1. 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.

1. 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.

1. The terms of the emergency declaration were that, in relation to the areas, place and object named as Camp Sovereignity, that the sacred fire was not to be extinguished without the free, prior and informed consent of the authorised traditional owners and that the traditional owners and custodians of the sacred fire should continue to maintain the sacred fire and place in accordance with their traditions and customs without interference from other parties.

1. Such notice was served upon the parties to this action, together with other interested parties, at some point yesterday. As a result of such a declaration being made, it is submitted that the local law is inconsistent with the emergency declaration and that pursuant to s.109 of the Commonwealth Constitution, the local law is invalid.

1. The plaintiff, initially in the statement of claim, argued that the sacred flame was an exercise of religion but that argument has been abandoned.  The plaintiff further submits in respect of their rights that clauses 2(1)(b), 2.2(a), 2.9 and 13(1)(c) of the local law are inconsistent with the operation of the Crown Land Reserves Act of 1978 or alternatively that the 1934 Public Parks Declaration is inconsistent with local law and thus the notice would be inoperative.

1. The plaintiff, in oral argument yesterday, referred to the plaintiff's existing use right which they would be seeking to rectify by the application for and granting of, a permit.  I note that it is not included in the plaintiff's statement of claim, and although it was mentioned today, in my view it was not seriously pursued which was entirely appropriate as such argument is, in my view, without merit.

1. I must now determine if there is a serious issue to be tried amongst the rights claimed by the plaintiff.  The terms of the notice to comply issued by the first named defendant are important in relation to this decision.  The plaintiff has submitted that the notice indicates that the first named defendant intends to remove the persons at the campsite and not just the objects at the camp.

1. The terms of the notice are as follows:  Firstly, there are the details of the breach and then there is a direction to comply with the Activities Local Law of 1999 and stop the conduct which breaches the local law.  That is directed to be ceased by 4 p.m. on 10 April.  The directions in terms of complying are that they should: (1) Remove all vehicles, caravans, tents or any other type of temporary or provisional form of accommodation from the campsite until such time as a permit is issued by the Melbourne City Council and (2) Remove any equipment or furniture associated with the campsite.

1. It is important to note that there is no direction to remove any persons or to remove the fire from the campsite.  Upon being questioned, counsel for the plaintiff agreed that it was the maintenance of the sacred fire that was the object of the injunction, not the maintenance of a camp with tents, vehicle, caravan or items of a like nature.

1. The court was not informed until today that there had been any such emergency declaration made by the plaintiff despite it having been made prior to the ex parte application before this court.  But here there is now an emergency declaration which has been made by the plaintiff which declares that the sacred fire is not to be extinguished and that other parties shall not interfere with the maintenance of that fire.

1. Section 22(2) of the Aboriginal and Torres Strait Islander Heritage Protection Act of 1984 makes it an offence to engage in conduct contravening the terms of the declaration relating to a significant Aboriginal object and s.22(1) an offence relating to a significant Aboriginal area.

1. The first and second named defendants are both government organisations and I presume that they will obey the law.  The Commonwealth law now protects the fire.

1. Counsel for both the first and second named defendants have indicated that their clients will obey and respect the law and the declaration that has been made. Further, if any person or organisation was to breach or attempt to breach that declaration, an injunction could be sought in the Federal Court by the minister to prevent such an occurrence. (See s.26 of the Aboriginal and Torres Strait Islander Heritage Protection Act.)

1. It has not been argued that the provision of tents or caravans or motor vehicles on the site is any form of tradition or custom of the plaintiffs and thus protected by the emergency declaration.  In respect of the argument that has been put forward that clauses 2(1)(b), 2.2(a), 2.9 and 13(1)(c) of the local law are inconsistent with the operation of the Crown Land Reserves Act of 1978 or 1934 Public Parks Declaration the plaintiff has put before me no material that demonstrates that there is even an argument that there is such an inconsistency let alone a serious or substantial issue to be tried on the point.  Accordingly, I find that there is no substantial point to be tried.

1. The plaintiff has submitted that this court should declare a certain area around the fire to be an area that is protected by an injunction to prevent the first named defendant from stopping fuel for the fire and to allow the plaintiff and members of her nation to have chairs and some form of accommodation for wet or cold weather to enable them to carry out the maintenance of the sacred fire.

1. There was no argument of a right that existed in the plaintiff to have such accommodation or facilities and therefore the court would be protecting a right that does not exist, or is even argued to exist except as a collateral inference on the existence of the sacred fire.

1. The fire can easily be maintained by those who regard it as sacred without the necessity of any particular creature comforts.  While such items may make those who tend the flame more comfortable whilst performing their duty, it is clearly not essential to that duty.  It would be a misuse of the court's jurisdiction to grant an injunction for such a reason.

1. The order that was made on 10 April was that the injunction be granted in the terms I made until further order.  The further order of the court is that the temporary restraining injunction is to be lifted as at 2 p.m. on Thursday, 13 April 2006.  That is done to allow an opportunity for those persons whose items are currently in the area to remove them and to comply with the notice issued by the first named defendant.

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