The applicant took us to authority from the Federal Court which suggests that a lower threshold might be applied by an intermediate appellate court in determining whether an injunction or a stay should be granted from its order in circumstances of a potential application for special leave to appeal, and sought to confine the observations of Brennan J to consideration by the High Court of that question. Although there is, as the applicant contends, some authority to that effect, we propose to apply the approach taken by Brennan J in Burgundy Royale, which is consistent with decisions in this Court, stretching as far back as 1997 in Australian Football League v Carlton Football Club Ltd[4] in which the decision of Burgundy Royale was applied. It has also been applied by decisions of the Court of Appeal of New South Wales. By way of example, we refer to Rinehart v Welker.[5] As we have indicated, we propose to apply that approach.
In the circumstances, we are satisfied that the grant of some injunctive relief is necessary to sufficiently preserve the subject matter of the litigation, and that the applicant has established exceptional circumstances sufficient to warrant the grant of the injunctive relief.
Although we accept that mere service of a notice to vacate would not obliterate entirely the subject matter of the litigation, it would put in train a process which, on the evidence, would likely result in a substantial disruption to the current position of the tenants, and would be likely to cause significant concern and uncertainty as to their ongoing entitlement to remain in their homes. The refusal of the injunction would sufficiently disrupt the status quo and make it exceedingly difficult to restore the position should special leave be granted. In that respect, we note the submissions of the respondent that the balance might change were special leave to be granted or were a proceeding to be issued at VCAT following service of any notice to vacate.
In those circumstances, continuing to take further steps to evict those tenants that remain in the towers would risk significantly altering the position. This would be difficult to restore in the event that the High Court grants special leave to appeal, and if it does so, ultimately, if it allows the appeal.
The balance of convenience also does not weigh in favour of refusing the grant of injunctive relief. Indeed, it favours granting it. We have already referred to the significant change to the position of the tenants should a notice to vacate issue. The evidence from the respondent that the inability to serve notices to vacate between now and the time that special leave would be determined, which, on the evidence, would appear to be a matter of months, was exiguous in nature, conclusionary and did not allow the Court to reach any satisfactory conclusion as to the nature, scope or extent of that loss and whether it would be irrecoverable.
By contrast, damages would clearly not be an adequate alternative remedy in the circumstances of this case. The relief sought by way of injunctive relief is limited and the prejudice, apart from the financial position which, as we have observed, was unsatisfactory. The prejudice it occasions will be temporary in nature. Accordingly, the balance of convenience lands in favour of the grant of injunctive relief.
In the circumstances of this proceeding, we are satisfied that we should not extract an undertaking as to damages from the applicant as a condition on the grant of the injunction. It is well recognised that such an undertaking as to damages is ordinarily required from an applicant seeking an interlocutory injunction to compensate for losses, both to parties and third parties, should the primary claim fail. However, the circumstances of the applicant - him being a disability support pensioner - limit the assets available for recovery. Further, it being a group proceeding covering residents of public housing, and the important public issues that arise about the nature of the power given to Homes Victoria, are such as to bring this case within the rare and exceptional class of cases where an injunction might issue without the acceptance of an undertaking as to damages.
In that respect, we note that the application for special leave to appeal, although it relates to the private rights of tenants, does not solely concern private interests, but raises matters of public importance relating to ensuring statutory powers are exercised lawfully. Those matters in combination are sufficient to permit the grant of an injunction without the necessity of an undertaking as to damages.
We are not persuaded that the form of the injunction should be that which was sought in the summons filed by the applicant. As already indicated in these reasons, the injunction sought was that the respondent be restrained from serving on group members any notice to vacate or, otherwise representing to them that they are legally required to vacate their homes. In relation to that second aspect, the applicant said the correspondence from the respondent in 2023 had been misleading, and that the injunction should protect against any furtherance of that conduct.
It is not necessary to consider whether or not the earlier correspondence was or was not misleading. It is sufficient to note that, given all of the circumstances, the form of relief should be as limited as possible to protect the equity of the applicant and other residents, and that the proposed form of the injunction goes further than is necessary or appropriate in an injunction of this kind.
Accordingly, the injunction will be limited to precluding the issuing of notices to vacate under s 91ZY of the Residential Tenancies Act on any current residents of 33 Alfred Street, North Melbourne; 120 Racecourse Road, Flemington; and 12 Holland Court, Flemington, until a determination of the application for special leave to appeal, or should special leave to appeal be granted, the appeal to the High Court, or until further order.
[2]
There will be an order that the respondent be restrained from serving any notices to vacate under s 91ZY of the Residential Tenancies Act on current residents of 33 Alfred Street, North Melbourne, 120 Racecourse Road, Flemington; and 12 Holland Court, Flemington, until the determination of:
[3]
(a) the application for special leave to appeal to the High Court; and
(b) should special leave to appeal be granted, any appeal to the High Court of Australia;
[4]
or until further order of this Court or the High Court of Australia.
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd[1986] HCA 84; (1986) 161 CLR 681; Rinehart v Welker[2012] NSWCA 1; (2012) 83 NSWLR 347; Australian Football League v Carlton Football Club Ltd (Victorian Court of Appeal, Tadgell, Hayne JJA and Ashley AJA, 1 August 1997), applied.