FEDERAL COURT OF AUSTRALIA

Muldoon v Melbourne City Council [2011] FCA 1306

THE COURT ORDERS THAT:

1.    The interlocutory application be dismissed.

2.    The matter be adjourned to a date to be fixed.

3.    Costs be reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1        I have before me an application for an interlocutory injunction restraining the first respondent, the Melbourne City Council, and its officers, servants, employees or agents, including the Lord Mayor, from acting upon or otherwise giving effect to certain clauses of the Melbourne City Council Activities Local Law 2009 insofar as they apply to and in respect of:

(a)    a tent not exceeding eight metres by eight metres to be erected in the south-west corner of the Treasury Gardens, Melbourne, so long as the tent is being used to cover the kitchen and food preparation area, as well as use for sleeping between 9 pm and 9 am by the protesters;

(b)    no more than 15 personal tents designed for sleeping no more than four persons erected for sleeping by the protesters (including their children) who reasonably perceive a need for such accommodation for health, personal security or safety reasons between the hours of 9 pm and 9 am;

(c)    erecting a sign on the tent referred to in paragraph (a) not exceeding one and a half metres by four metres stating words to the effect of: “Welcome to Occupy Melbourne. Welcome to Direct Democracy.”

2        The applicant, Mr James Muldoon, seeks the injunction on behalf of a group of protestors, who have, in various assemblies, engaged in a protest known as “Occupy Melbourne” since 2 November 2011. The applicant states that the protest is as a result of the recent global financial crisis, and the protestors are publicly expressing their view “for a need for economic, political, and social changes that will lead to a more just and equitable society”.

3        Since this matter was first before me on 9 November 2011 the parties have filed further evidence and have made submissions as to the position that should be maintained until this matter can be heard and determined either by a single justice of this Court or by the Full Court. I proceed on the basis of accepting, for the purposes of this interlocutory hearing, that there is a serious question to be tried or a prima facie case. I say nothing about the strength or otherwise of the case, as I do not think that it is necessary or appropriate for me to do so. I do appreciate that the strength or otherwise of a prima facie case may impact upon the balance of convenience. However, I have come to a very clear view on the balance of convenience in this particular case, which would, in my view, be applicable irrespective of the strength of the prima facie case.

4        I do not think, in considering the balance of convenience, that I should be constrained by the status quo. That said, in my view, it has particular significance in this matter. I refer to the statement made by Dr I C F Spry in The Principles of Equitable Remedies (7th ed, Lawbook Co, 2007) at pp 455-456, dealing with preservation of the status quo and interlocutory injunctions, where the learned author said:

Although it is commonly found to be most convenient, where a case for an interlocutory injunction is made out, to preserve the position that exists at the time of the making of the material application, this is by no means always so. Sometimes it is found that the most just regulation of the rights of the parties, in view of continuing hardship or inconvenience and the extent to which the court may need to ensure that its final order, when made, will operate reasonably, involves the maintenance of a different position, such as that which existed before particular acts alleged to be wrongful took place, or that which existed when some particular step in the proceedings was taken, and on some occasions it may even be necessary to grant an interlocutory mandatory injunction in order to have buildings or other structures removed, so that an earlier position is duly restored.

5        The learned author went on to say at p 456:

But although it has been said that where other factors appear to be evenly balanced it is a counsel of prudence to preserve the status quo, it must be borne in mind that the burden is on the applicant for interlocutory relief to show that the intervention of the court is appropriate in all the circumstances.

6        I have come to the conclusion that the intervention of the Court is not appropriate in all the circumstances of this case. My main reason for coming to this view is that I do not consider the Court needs to intervene having regard to the position with which it is currently confronted. The Court will be able to accommodate an early hearing of this proceeding so as to determine, finally, the rights and responsibilities of the parties and the competing views which were raised, involving, as they do, constitutional issues and matters of public interest. It seems to me that the Occupy Melbourne protest is able to carry on its activities successfully, although not as successfully as it would immediately like, without the intervention of the Court at this time.

7        The protest, at present, is peaceful. I have no reason to believe, having regard to the events since this matter has been before the Court, that this will change. I also have no reason to believe that this will change now that participants realise that the Court is able to make a determination at the appropriate time as to the rights of the parties.

8        Furthermore, it seems that the erection of the tents may have an impact on the Treasury Gardens and the health and well-being of users of the Gardens.

9        I appreciate the Honourable Mr Merkel QC’s argument that what is at stake here is not the number of people that may come to the Treasury Gardens. The orders sought certainly adopted a “minimalist approach” so as to allow some activity within Treasury Gardens, but sought to avoid any negative impact on the Gardens or its users.

10        However, I think it is unrealistic to think that the protest will not therefore constitute a larger number of persons than envisaged by the “minimalist approach” of the orders sought. The protest may then result in, as a consequence, the concerns that were expressed in the affidavit of Mr Francis Khoo on behalf of the Melbourne City Council.

11        It is for the above reasons that the balance of convenience weighs in favour of not intervening at this time, the burden being upon the applicant to show that intervention is appropriate.

12        I propose to dismiss the interlocutory application and make directions for a speedy trial.

13        The Court orders that:

1.    The interlocutory application be dismissed.

2.    The matter be adjourned to a date to be fixed.

3.    Costs be reserved.

Associate:

Dated:    15 November 2011