Henderson v Corporation of the City of Adelaide [2011] FCA 705

FEDERAL COURT OF AUSTRALIA

Citation:		Henderson v Corporation of the City of Adelaide [2011] FCA 705

Parties:		PATRINA KELLY HENDERSON v THE CORPORATION OF THE CITY OF ADELAIDE

File number:		SAD 131 of 2011

Judges:		BESANKO J

Date of judgment:		9 June 2011

Date of hearing:	8 June 2011

Place:	Adelaide

Division:	GENERAL DIVISION

Category:	No Catchwords

Number of paragraphs:	4

Counsel for the Applicant:	The Applicant appeared in person

Counsel for the Respondent:	Mr M Roder SC

Solicitor for the Respondent:	Norman Waterhouse

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 131 of 2011

BETWEEN:

PATRINA KELLY HENDERSON

Applicant

AND:

THE CORPORATION OF THE CITY OF ADELAIDE

Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	9 JUNE 2011
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The application for interlocutory injunctions be refused.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 131 of 2011

BETWEEN:

PATRINA KELLY HENDERSON

Applicant

AND:

THE CORPORATION OF THE CITY OF ADELAIDE

Respondent

JUDGE:	BESANKO J
DATE:	9 JUNE 2011
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

Victoria Park

1 This is an application by the applicant for an interlocutory injunction to restrain the respondent from carrying out certain work at Victoria Park in the eastern suburbs of Adelaide. I am satisfied that the injunction should be refused by reference to the balance of convenience. The relevant factors are outlined in the affidavit of Mr Michael Blythe at paragraphs 25 to 37 inclusive.

2 In terms of a prima facie case or serious question to be tried, the applicant appears to face very substantial obstacles in establishing that the respondent’s conduct infringes the Environment Protection and Biodiversity Conservation Act 1999 (Cth). I will not say anything more than that because of the conclusion I have reached in relation to the balance of convenience. The application for an interlocutory injunction is refused.

Park 21 West and Park 22

3 This is an application by the applicant for an interlocutory injunction to restrain the carrying out of works on Parks 21 West and 22. The respondent relies on an affidavit of Mr Michael Blythe sworn on 7 June 2011. In that affidavit Mr Blythe deposes as follows:

The works have been undertaken by ETSA Utilities. The council has no involvement in the works. My understanding of the Electricity Act 1996 is that ETSA Utilities is authorised to undertake works on the park lands provided that it has an authority from the council, or in the event of a dispute with the council from the Minister for Infrastructure. I understand that the council gave authorisation for the works now being undertaken subject to conditions to minimise the removal of and damage to remnant native plants.

4 It is clear that the works with respect to Parks 21 West and 22 are being carried out and will be carried by ETSA Utilities. ETSA Utilities is a necessary party to any application for an interlocutory injunction which would have the effect of restraining the carrying out of the works, and ETSA Utilities is not at present a party to this application. In any event, I am not satisfied on the material and submissions put to me that an order could be made against the respondent requiring it to require compliance with its authorisation. More importantly, I am not satisfied on the material and submissions put to me that the work is being carried out contrary to the authorisation. In the circumstances I refuse the application for an interlocutory injunction.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Dated: 20 June 2011

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