Sharp v Conroy

[2020] NSWSC 271

Supreme Court

New South Wales

Medium Neutral Citation:	Sharp v Conroy [2020] NSWSC 271
Hearing dates:	13 March 2020
Date of orders:	13 March 2020
Decision date:	13 March 2020
Jurisdiction:	Common Law
Before:	Cavanagh J
Decision:	(1)   That leave be granted to the plaintiff, Kim-Lorraine Sharp, to file in Court the Summons naming Kim-Lorraine Sharp as plaintiff and Holly Conroy as first defendant. (2)   The plaintiff’s application is refused and the Summons is dismissed.
Catchwords:	EQUITY — equitable remedies — injunctions — ex parte — standing — private event held on commercial premises   EQUITY — equitable remedies — injunctions — ex parte — undertaking as to damages
Category:	Procedural and other rulings
Parties:	Kim-Lorraine Sharp (Plaintiff) Holly Conroy (Defendant)
Representation:	Solicitor: Mr K Foley (Plaintiff) Defendant (No appearance)
File Number(s):	2020/86156
Publication restriction:	Nil

Revised ex tempore Judgment

1. Kim-Lorraine Sharp seeks leave to file in Court on an urgent basis a summons seeking what is described as a prohibition order, prohibiting all activities by or in relation to the Mardi Gras event in Wagga Wagga from Friday 13 March 2020 to 5.00pm Monday 16 March 2020, including meetings or any activity in which a group of people of any age, large or small, will be present.

2. Ms Sharp is represented by her solicitor, Mr Kevin Foley of Foley Lawyers of Wagga Wagga.

3. I am sitting as the Duty Judge and Mr Foley has been in contact with my Chambers since he sent an email at 10.07am this morning.

4. The matter is proceeding in this way and with this degree of urgency because the basis of the application is said to be the public health threat caused by the Coronavirus. That is the basis on which the plaintiff asserts that she is seeking urgent orders from the Court.

5. Mr Foley has given an undertaking to pay the filing fee in respect of the summons which he emailed to my Chambers and I have granted leave for the summons to be filed in Court.

6. I am hearing his application on an ex parte basis over the phone at the request of the plaintiff. Mr Foley and his client are in Wagga Wagga. I raised with Mr Foley earlier in the day why this matter should be heard on an ex parte basis. Be that as it may, Mr Foley seeks for the application to be heard on an ex parte basis and seeks the order to which I have just referred.

7. Mr Foley relies on the affidavit of the plaintiff sworn 13 March 2020. He has made a number of statements which are not necessarily the subject of evidence by way of explanation.

8. The background to the matter is this: The defendant, who is not present, Ms Conroy, is said to be the organiser of events associated with what is described as the Mardi Gras in Wagga Wagga which was due to be held from Friday 13 March 2020 to Monday 16 March 2020. When the Court was first contacted by the plaintiff, through her solicitor, we were informed that the purpose of the application was to seek to restrain the holding of the event described by the plaintiff as the Mardi Gras event.

9. It seems that shortly prior to this matter coming before the Court at 3.45pm, the Council and other authorities have met and have cancelled the event.

10. Despite that, the plaintiff still seeks the orders in the summons on the basis that one event, seemingly associated with the festival in Wagga Wagga being a function at a venue called the Que Bar in Wagga Wagga, is still going ahead and the plaintiff expects that a large number of people will be attending. I am informed by Mr Foley, solicitor for the plaintiff, that the bar is a private bar somewhere in Wagga Wagga.

11. I am obviously hearing this matter in a somewhat unusual way, because of the nature of the application. The plaintiff sets out in her own affidavit the reason that she is seeking the prohibition order as being that the holding of the event and associated events will present a large number of people in close proximity to other people, causing a very real danger of transmission of the Coronavirus. She says her opinion is based on her own research on the Internet of news sources and World Health Organization declarations. She refers to widespread apprehension concerning the Wagga Wagga community about the event and, indeed, all large public gatherings.

12. I should say that, as the plaintiff is moving ex parte, there is no contradictor and I will give such weight as appropriate to some of the comments of the plaintiff concerned in her affidavit.

13. In any event, the plaintiff says she has a deep concern regarding the serious health risk to the Wagga community and is concerned about her own health. She says she has a serious health condition, being severe anaphylaxis to antibiotics and an auto-immune disease, polymyalgia rheumatic.

14. In para 11 of her affidavit, she identifies the respondent to the application as Holly Conroy and she puts her address and describes her as the event organiser.

15. It is not necessary for me, as part of this judgment, to make any comment about the virus, its potential to spread or the circumstances in which it will spread. There is obviously significant publicity on that issue at the moment. Nor do I wish to in any way minimise the plaintiff's concerns for the general public health or her own health concerns.

16. However, it is necessary that I determine any application in accordance with appropriate legal principles. Mr Foley has submitted that these are extraordinary times and that the Common Law should be adapted to the extraordinary times, such that the plaintiff should be granted the relief she seeks, bearing in mind her belief as to the public health risk associated with the activity which she seeks to restrain.

17. There are, however, a number of fundamental difficulties with this application, including the following.

18. Firstly, as I understand the evidence or the information provided by Mr Foley, the function which the plaintiff seeks to restrain or prohibit is taking place in private commercial premises. I understand that the Council and the State Government has already made a decision about those events or functions which would have been taking place in public areas.

19. Secondly, the plaintiff seeks in the nature of final relief. It is hardly preliminary relief in circumstances in which the function is due to take place tonight and the effect of the orders the plaintiff seeks would be to preclude the function taking place.

20. The plaintiff seeks these orders in circumstance in which there is no appearance by the defendant and the plaintiff seeks to move ex parte.

21. I confirm that I did raise how the plaintiff could be pursuing such an application in earlier email exchanges when Mr Foley was seeking to have the matter listed.

22. Thirdly, the plaintiff has named the defendant as the defendant on the basis that she is said to be the person who has organised the Mardi Gras in Wagga Wagga. However, while she might be the one who has organised the event at the Que Bar, the Que Bar is presumably owned and operated by someone else, that is, by a person who operates a commercial business under the terms of ownership of the property or lease of the property who has the power and ability to determine who might enter that property. I understand that no notice has been given to the owner or occupier of the Que Bar that this application is being made.

23. Fourthly, it does not seem to me that the plaintiff has standing to make such an application. Again, I am not seeking to minimise her general concerns in these times but, as I understand it, she is a private citizen who has no connection with the event and does not represent anyone (although she says she is making the application on behalf of all the concerned members of the community).

24. The plaintiff does not have standing to obtain an order from the Court effectively shutting down commercial premises when the operator of those premises is presumably licensed to hold the event. If the council or any other regulatory authority had such concerns as to public health and safety then the council or other regulatory authorities could act in accordance with the their powers.

25. Fifthly, although the plaintiff has given an undertaking as to damages, she is a pensioner. Mr Foley freely admitted in exchange during his submissions that she would have no capacity to pay any damages. He submitted that in these parlous times the Court should waive such a requirement or not seek to compel a person such as the plaintiff to ever pay any damages. Despite the parlous times, for me to simply waive such a requirement in this matter would be acting contrary to long-established principle.

26. I might also say that there is no evidence before me as to the position of the operator of the Que Bar. I understand from emails that I have admitted, again, being emails from Mr Foley, that the defendant has not agreed to cease any activity, other than, of course, agreeing to comply with whatever orders might have been made by the Council or the State Government in respect of the holding of the public events.

27. In summary, I am not satisfied that the plaintiff is entitled to the orders that she seeks. It seems to me that these are matters over which the Government or other regulatory authorities have control should they consider it necessary to exercise any such control.

28. I infer that the Council and authorities, having met and apparently cancelled the public events, have already decided not to do anything about any other events.

29. In the circumstances, the orders I make are as follows:

1. That leave be granted to the plaintiff, Kim-Lorraine Sharp, to file in Court the Summons naming Kim-Lorraine Sharp as plaintiff and Holly Conroy as first defendant.

2. The plaintiff’s application is refused and the Summons is dismissed.

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Decision last updated: 27 March 2020