Rajendran v Tonkin

[2002] VSC 251

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 5901 of 2002

ADRIAN RAJENDRAN & ANOR	Plaintiffs
v
RAYMOND WILLIAM TONKIN & ANOR	Defendants

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JUDGE:	Bongiorno J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 June 2002
DATE OF JUDGMENT:	14 June 2002
CASE MAY BE CITED AS:	Rajendran & Anor v Tonkin & Anor
MEDIUM NEUTRAL CITATION:	[2002] VSC 251

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INTERLOCUTORY INJUNCTION – Hearing of appeal by the Heritage Council – Serious issue to be tried – Balance of convenience against granting injunction.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr C W Porter	Wood Fussell
For the Defendants	Mr M Dreyfus QC with Mr B Quinn	Victorian Government Solicitor

HIS HONOUR:

1. This is an application by summons for interlocutory relief in a proceeding originally brought by originating motion on 6 June of this year, which seeks orders in the nature of mandamus or prohibition commanding the Heritage Council, a body established under the Heritage Act 1995 to take certain steps in relation to a matter currently under its consideration relating to premises in Riversdale Road, Camberwell, the designation of which is more particularly set out in the pleading.

1. The interlocutory relief sought is an injunction restraining the Heritage Council from continuing with the hearing of an appeal by the plaintiffs against the determination of the executive director of the Heritage Council pursuant to s.67 of the Heritage Act 1995.

1. Mr Porter, who appears for the plaintiffs, has, in a cogent and persuasive argument, pointed to two particular matters which he says dictate that this Court should act at this time.  The first is material which suggests, at least, that in the case of the Chairman of the panel hearing this appeal, there may be a relationship between him and the National Trust of Australia (Victoria) which would result in it being inappropriate, from a natural justice point of view, that he continue to be part of the deciding body.

1. The second point made by Mr Porter is that the procedure of the Heritage Council and the way in which it has conducted this appeal so far, leads to the conclusion that there will be a denial of natural justice in that it will be acting on other than evidence if and when it reaches its conclusion.  Mr Porter pointed to its published guidelines and, in particular, to the material which is presently before it upon which it proposes to act which consists largely of assertion rather then evidence.  This is notwithstanding that the appeal body is, of course, not bound by what the courts refer to as the rules of evidence.

1. Both of these points may have significant force in them.  However they need further investigation before any definitive conclusion could be reached.  On the face of it on the material which I have read, there does appear to be some relationship between Mr Dwyer QC and the National Trust.  Whether that relationship results in it being appropriate or necessary that he not sit on this body is a matter that can be determined only after a further consideration of the material presently before the Court, and of any other material which might be before the Court upon the eventual determination of the originating motion.

1. So far as the second point is concerned, it may well be that if the body continues to consider this matter by reference to material which is referred to in the documents before it, but which is not before it in the sense that evidence would be before it, may well be that it will commit an error of law; remediable in some administrative law way, by a grant of the relief currently sought in the originating motion.

1. However, it is accepted by the applicant that there is probably less than one day left in this hearing before the appeal body.  Mr Dreyfus Q.C. has said that the composition of the body itself will change on 30 June when one of its members retires by effluxion of time.  That would necessitate, in the event that this hearing was now stayed, the appointment of someone else to the body leading inevitably to the matter having to be commenced again. 

1. At this point there has been no decision made by the appeal body, of course, and although the material and the arguments of Mr Porter raise a serious issue to be tried, in the sense that that phrase is used in respect of interlocutory relief, it seems to me that the balance of convenience is very much in favour of allowing this hearing to continue before the panel as presently constituted, leaving the question of ultimate relief by way of prohibition, mandamus or some other prerogative relief or judicial review to be determined after the decision has been given.  That will enable the Court on hearing the matter to consider all of the matters, including those which have been raised so cogently and eloquently by Mr Porter today.

1. Accordingly, in the circumstances the application for interlocutory relief will be dismissed.

1. The summons will be dismissed and costs will be reserved.

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