St Alder & Ors v Waverley Local Council & Anor

[2010] HCATrans 69

[2010] HCATrans 069

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney     No S48 of 2010

B e t w e e n -

KEVIN ST ALDER

First Applicant

DENNIS WILSON

Second Applicant

RAYMOND HUMPHRIES

Third Applicant

TANGITIAMAINE MAKLITI

Fourth Applicant

ALTAF KHAR

Fifth Applicant

ANDRE RICARDO MOHAMMED

Sixth Applicant

GILBERT WIRIWETERI HONA

Seventh Applicant

NATHAN BAKER

Eighth Applicant

and

WAVERLEY LOCAL COUNCIL

First Respondent

STATE OF NEW SOUTH WALES

Second Respondent

Summons for injunction and expedition

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 22 MARCH 2010, AT 9.41 AM

Copyright in the High Court of Australia

__________________

MR A.W. STREET, SC:   May it please the Court, I appear with my learned friend, MS D. HAWKINS, for the applicants.  (instructed by Slattery Thompson Solicitors)

MR T.M. FAULKNER:   May it please your Honour, I appear for the first respondent.  (instructed by Wilshire Webb Staunton Beattie)

MR R.K.K. GOWENLOCK:   May it please the Court, I appear for the second respondent.  (instructed by Crown Solicitor (NSW))

MR STREET:   Your Honour, could I indicate that in this summons we obviously rely upon the affidavit of ‑ ‑ ‑

HIS HONOUR:   Yes, just before you go further, Mr Street, on that subject of the summons and the affidavit, you wish to read that affidavit of Kevin St Alder?

MR STREET:   I do, your Honour.  That is the more recent affidavit which is sworn 18 March.

HIS HONOUR:   Yes, and filed on 18 March?

MR STREET:   Yes, your Honour.

HIS HONOUR:   Do the respondents have any problem with that affidavit?

MR FAULKNER:   No objection, your Honour.

MR STREET:   Could I hand up to your Honour a proposed order which is not opposed by the respondents.  The respondents’ position, your Honour, is they do not consent, they do not oppose.  Your Honour, it is in those circumstances ‑ ‑ ‑

HIS HONOUR:   This order is the same as the one which Justice Basten granted on 23 December?

MR STREET:   It is, although the undertaking is now broader.  So the undertaking has been expanded in accordance with a request by my learned friends and having obtained instructions, I, together with my junior, give the undertaking on behalf of the applicants that is identified in the proposed draft order.

HIS HONOUR:   If they have no problem with the undertaking or the injunctions, I would not raise any problem, but there is one difficulty, Mr Street.  One of your arguments is expressed to be a constitutional argument and you complain that it was raised in the Court of Appeal but not disposed of by the Court of Appeal.  It certainly is not mentioned by the Court of Appeal.  Now, if it is in truth a constitutional argument, should notices not be ‑ ‑ ‑

MR STREET: Yes, your Honour, and they were below. The State gave a notice under 78B reflecting the argument from the submissions that I put forward. Before the Court of Appeal I relied upon section 78B(5) but the Court of Appeal were not placed in the position where they could not entertain it and an affidavit was put on in relation to, I think, the service of that 78B. So the 78B notice had been given before the Court of Appeal. Your Honour, I accept though ‑ ‑ ‑

HIS HONOUR:   To all attorneys?

MR STREET:   I understand so, yes, your Honour.  Your Honour, in this Court it certainly would be our intention to give a proper 78B notice before your Honour on this application, though obviously we would have said 78B(5) applies.

HIS HONOUR:   On this application today, I agree, but not so for the special leave application.

MR STREET:   Correct, your Honour. 

HIS HONOUR:   I think we will have to take the following steps.  In view of the fact that there is space in the Court’s list on 23 April and this matter could be put in there so that an order for expedition could be made and the matter could be fixed for that day and the injunction, it seems to me, ought to last until a week after that day in case that day is not a successful day from your client’s point of view, that extra week will permit orderly departure ‑ ‑ ‑

MR STREET:   Yes, your Honour.  Your Honour, could I just indicate this.  This is the type of application where, notwithstanding I accept it will be a very tight timeframe in the special leave timeframe, it is likely that it would be capable of being disposed substantively within a very short space of time.  In other words, the substance of the argument that I anticipate we will deal with on the special leave application will probably cover the substance of the issues. 

Just on that, if I can, your Honour, one of the decisions that was cited by his Honour Justice Handley in support of the approach that was adopted was a decision of the Court of Appeal in England back in 1891 where I think in his Honour’s judgment he cites the decision of Lord Justice Bowen.  The relevant passage by Lord Justice Bowen is one in which his Lordship identifies the very issue as being a question for the jury in the passage cited.  Your Honour, our case is whether there is a trial issue.  I mention that only from the viewpoint, your Honour, as to it being one where it may be that it is capable of complete disposition on the day.  I say no more, your Honour.

HIS HONOUR:   Yes.  I think that will just have to be left to the day.  It will depend how much time there is in the day and the attitudes of the Judges who compose the Court on that day.  If I can just go back to something I was proposing to indicate.  If it is heard on 23 April, there will have to be a timetable for the respondents to get their summaries of argument on quickly.  I was going to nominate 26 March for that, which is Friday, and then you would have to put on any reply before 1 April, which is Maundy Thursday, and then you would have to prepare and file and serve copies of the application book, I think, on or before 8 April so as to allow time for them to be distributed to members of the Court and considered.  The other step in the timetable would be for you to file and serve 78B notices on or before 26 March.  Now, does anyone have any objection to any part of that timetable?

MR GOWENLOCK:   The only difficulty, your Honour, is that Mr Michael Sexton is briefed to appear on behalf of the second respondent.  He has just returned today from two weeks holidays, so there is some pressure in relation to the second respondent to comply with 26 March.  It can be done but it presents real difficulties.  Sorry, he is not back till next Monday.  I am sorry, your Honour.

HIS HONOUR:   Let me try to approach things this way.  I think it is vital that the day for finality on the application book should be 8 April.  You have been in this all the way through, have you not, Mr Street?

MR STREET:   I have, your Honour.

HIS HONOUR:   If we made the time for the second respondent’s summary of argument, say, something like 30 March?

MR STREET:   That does not cause me difficulty, your Honour.

HIS HONOUR:   You would be able to get your reply together in the next two days?

MR STREET:   Yes, your Honour.

HIS HONOUR:   Does that meet the problem?

MR GOWENLOCK:   Yes, thank you, your Honour.

HIS HONOUR:   Are you happy with ‑ ‑ ‑

MR FAULKNER:   Your Honour, if the second respondent is going on 30 March, I would seek also that date.

HIS HONOUR:   Why?  You are a big red-blooded counsel.

MR STREET:   Not opposed, your Honour.

MR FAULKNER:   It is my leader I am concerned about, your Honour.

MR STREET:   Your Honour, can I, just before you do pronounce those orders, just identify this.  On the last occasion, your Honour, the application books were in fact prepared with the assistance of, I think it was, the first respondent.  Although I do not ask your Honour to vary the direction that you made, I think we would be seeking some assistance in that regard.

HIS HONOUR:   The first respondent?  That is to say, the first respondent actually does the ‑ ‑ ‑

MR STREET:   Assist, yes, your Honour.  I do not ask your Honour to make a direction.  I simply note that that is what occurred before.

HIS HONOUR:   Very well.  I am sure ‑ ‑ ‑

MR FAULKNER:   I do not have instructions, but we are keen to have the matter dealt with as soon as possible and we will be constructive.

HIS HONOUR:   Thank you.  Before pronouncing the Court’s orders, I should indicate that the background is that for some years the applicants have been sleeping in part of the pavilion on Bondi Park.  After the first respondent requested them to remove their belongings before 24 June 2009, they commenced proceedings in the Supreme Court of New South Wales with a view to obtaining orders protecting the status quo.

The respondents succeeded in obtaining orders for summary dismissal of the proceedings from Associate Justice McLaughlin on 14 December 2009.  On 8 March 2010, the Court of Appeal, Justice Allsop, the President, Justice Basten and Acting Justice Handley dismissed an appeal.  The applicants have applied to this Court for special leave to appeal.  They have filed a summons dated 16 March 2010 seeking expedition and an injunction.

This morning counsel for the applicants has handed up a form of injunction which in substance corresponds with that made by Justice Basten on 23 December in order to hold the position pending the appeal to the Court of Appeal, which has been continued so has to expire today.  The form of the undertaking given by the applicants through their counsel has been widened.  The respondents neither consent to nor oppose the orders sought by the applicants which are essentially an order for expedition and an order that an interlocutory injunction be granted of the kind just referred to.  Neither of them contended that the special leave application was doomed to failure for to grant the injunction would be futile for any reason.

There is space in the Court’s list on 23 April 2010 for the hearing of the applicant’s special leave application.  Counsel for the applicants indicated that it might be possible to dispose of the whole matter on that day.  That possibility is noted, but whether it will come to fruition will depend on the attitude of the Justices who compose the Court on that day.  In my opinion, the grant of an injunction of the kind referred to is desirable in order to preserve the subject matter of the litigation pending exhaustion of all court processes. 

If the present regime which has been in place since 23 December is not continued and an application for special leave to appeal succeeds and the appeal itself succeeds, the applicants will have suffered harm which is either irreparable or very difficult to repair by any monetary remedy that may be open to them. For those reasons, I will make the injunction largely in the form proposed. In the course of argument, the need to serve notices under section 78B of the Judiciary Act 1903 (Cth) arose and provision for that will be made in the orders.

I order and direct as follows:

1.Upon the applicants, through their counsel, giving an undertaking to the Court to maintain the area in question in a state of cleanliness and good order and to dispose of any rubbish in available rubbish tins in the park and to keep the fire exit clear of obstruction, the Court grants an injunction until 5.00 pm on 30 April 2010 restraining the respondents by themselves and by their employees or agents from removing the applicants and from taking steps to remove the applicants’ belongings and from preventing access to the area the applicants occupy under the colonnade to the north-west rear of the Bondi Pavilion.  In relation to the removal of belongings or prevention of access, the restraint is limited to such steps as are taken for the purposes of rendering the existing state of occupation impractical and with the intention that the restraints will not apply to the provision of the emergency services so far as such services may require access to or impact upon the area in question.

2.I direct:

(a)The respondents to file and serve their summaries of argument on or before 30 March 2010.

(b)The applicants to file and serve any reply on or before 1 April 2010.

(c)The applicants to prepare, produce, file and serve copies of the application book pursuant to rule 41.09.8 to 41.09.10 on or before 8 April 2010.

(d)The applicants to file and serve any notices under section 78B of the Judiciary Act 1903 (Cth) on or before 26 March 2010 which they may be advised to file and serve.

Is there anything else that should be done?

MR STREET:   I think your Honour formerly listed the matter for ‑ ‑ ‑

HIS HONOUR:   Yes, indeed.  I will make another order after the injunction and before the directions.  That order will be:

The special leave application be expedited and fixed for hearing on 23 April 2010.

Thank you, Mr Street.

AT 9.56 AM THE MATTER WAS CONCLUDED