Love v Thwaites [2003] VSC 22

Supreme Court of Victoria|2003-02-14|Before: NETTLE J

I have before me an application for urgent ex-parte interim injunction to restrain the thirdnamed defendant from disturbing the historic complex known as Clonnard Homestead (as identified in the registration of Heritage Council and by the National Trust of Australia (Victoria)). The grounds of the application are in effect set out at some length in the statement of claim endorsed upon the writ, but in short it is contended that the compulsory acquisition of the homestead which preceded the threatened demolition is void. It is contended that decision to acquire was based upon improper considerations and further or alternatively that the decision-maker failed to take into account relevant considerations and further or alternatively that, however it may be construed, it is not a decision that a reasonable decision-maker properly informed could properly have made.

The plaintiff says that in making the decision to acquire the land for that purpose the decision-maker failed to have proper regard to an obligation to preserve a rock resource which is upon and around the land, misconstrued the effect of the refusal of an application for extractive industries permit made by the plaintiff, and either took into account as an irrelevant consideration or gave altogether improper weight to the competing interests of the proprietor of other land upon which the freeway might have been constructed, amongst other considerations.

I should say that I am by no means convinced that there is a great deal of strength in any of the grounds of invalidity which are asserted, but having regard to the submissions which have been made to me this afternoon by Mr Carmichael of counsel I conclude that there is at least a serious question to be tried.

The application has been supported to some extent by viva voce evidence given by the plaintiff, and he has deposed not only to the special significance of the land to him, by reason of its history and his family's long connection with it, but also to irreparable harm to extractive industries operated on adjacent land if the homestead is demolished.

I was for some time concerned that the application has been made ex parte without notice, but bearing in mind the correspondence that has passed between the solicitor for the plaintiff and some of the defendants in the weeks leading up to the application, and that it is only as recently as 29 January 2003 that a consent to disturb possession was issued, I think the course which has been adopted is probably justified. Among other considerations which lead me to that view is the plaintiff's evidence that when the tenant of the property was compulsorily removed from possession by the third defendant, he was told that he might remain in possession until 5 o'clock today, but no longer.

In the circumstances as I understand them at present, there seems to be sufficient urgency to warrant the exceptional course of moving ex parte without notice.

The plaintiff has given evidence of his capacity to meet any undertaking as to damages in the event that the court is hereafter of the view that such should be paid by reason of that which is sought, and I am satisfied of his capacity to meet that order on the basis of the evidence which he has given.

The plaintiff is also prepared to give an undertaking that the writ and statement of claim be served, as I propose to direct, and that there be made, filed and served an affidavit substantially in the form of the draft affidavit which is before me as exhibit P2, together with a copy of the other documents which have been received into evidence this afternoon as exhibits P1 to P10 inclusive and a transcript of this afternoon's hearing, as soon as that becomes available, together, of course, with a copy of the order.

Accordingly, upon the plaintiff by his counsel giving the usual undertaking as to damages, an undertaking to serve the writ and statement of claim and by 10.00 am on 17 February 2003, to make, file and serve an affidavit substantially in the form of the draft affidavit of Thomas James Love which is exhibit P2 before me and to serve copies of the other exhibits, P1 to P10, the transcript of this afternoon's hearing and this order, I am prepared to order that until 10.30 am on Tuesday, 18 February 2003 or further order, the thirdnamed defendant, Roads Corporation, be restrained from demolishing or otherwise disturbing the historic site complex known as Clonnard Homestead as identified in the registration of Heritage Council and by the National Trust of Australia (Victoria) and that the hearing of the plaintiff's application for interlocutory injunction and other orders be adjourned until Tuesday, 18 February 2003 at 10.00 am before me. Do you have any instructions to give those undertaking which I have identified, Mr Carmichael?

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