Case Analysis

Supreme Court

New South Wales

Case Name: Coles Group Property Developments Limited v Milovan (aka Michael) Stankovic

Medium Neutral Citation: [2016] NSWSC 852

Hearing Date(s): 14 and 15 June 2016

Decision Date: 23 June 2016

Jurisdiction: Common Law

Before: Sackar J

Decision: See paragraphs [68] and [69]

Catchwords: TRESPASS TO LAND – Whether land dedicated for public use – Whether implied licence to enter revoked – Whether protected by Protocol for Homeless People in Public Places – Whether permanent injunction appropriate – Relevance of hardship

Legislation Cited: Inclosed Lands Protection Act 1901 (NSW)

Cases Cited: Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd [2007] VSCA 311 Casson v Leichhardt Council [2011] NSWLEC 423; 186 LGERA 34 Cavric v Willoughby City Council [2015] NSWCA 182 Halliday v Nevill (1984) 155 CLR 1 ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 Lawrence v Fen Tigers Ltd [2014] AC 822; [2014] 2 All ER 622 Lets We Forget Pty Ltd v Westpac Banking Corporation [2005] 56 ACSR 126 Lord v McMahon [2015] NSWSC 1619 Namul Pty Ltd v Milovan Stankovic [2013] NSWSC 115 Newington v Windeyer (1985) 3 NSWLR 555 Owen v O’Connor [1963] SR (NSW) 1051

Reliance Finance Corporation Pty Ltd v Orwin Walshe & Ward [1964-5] NSWR 970 Ross v Lane Cove Council [2014] NSWCA 50 Shire of Narracan v Leviston (1906) 3 CLR 846 Street v Luna Park Sydney Pty Limited [2009] NSWSC 1 Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41; 150 FCR 110

Texts Cited: Spry’s The Principles of Equitable Remedies (9th ed, 2014)

Category: Principal judgment

Parties: Coles Group Property Developments Limited (first plaintiff) ISPT Pty Ltd as trustee for the ISPT Retail Australia Property Trust (Kellyville NSW) (second plaintiff) Milovan Stankovic (defendant)

Representation: Counsel: T Maltz (plaintiff) M Stankovic (self-represented) Solicitors: JBT Lawyers (plaintiffs)

File Number(s): 2015/311711

Publication Restriction: N/A

JUDGMENT 1 This is an application for a declaration that the defendant is not entitled to enter

or remain upon the land known as Kellyville Plaza or leave any property on that

land. Further orders are sought permanently restraining the defendant from

entering upon or remaining on the land or leaving any property on the land, and

permitting the plaintiffs to sell, destroy or dispose of any property left by the

defendant.

2 The plaintiffs in this matter are Coles Group Property Developments Ltd

(Coles) and ISPT Pty Ltd as trustee for the ISPT Retail Australia Property Trust

(Kellyville NSW) (IPST). The plaintiffs are the registered proprietors of the land

at 90 Wrights Road, Kellyville upon which is situated the Kellyville Plaza. IPST

is registered as the owner of a three-quarters share and Coles as the owner of

a one-quarter share in the land.

3 The defendant is Mr Milovan (Michael) Stankovic. Mr Stankovic is a 71 year old

homeless man who resides in a van with licence plates AM 29 MT. His medical

report indicates that has had leukaemia and suffers from heart disease, type II

diabetes, arthritis and scleritis.

Background facts

4 Mr Stankovic appears to have resided in a property behind Kellyville

Woolworths until that property was sold following his being declared bankrupt.

Mr Stankovic remains of the view that that property was “illegally stolen” (T6).

5 In February 2013, Rein J made orders declaring that Mr Stankovic had no right,

title or interest in the Kellyville property and restraining Mr Stankovic from

entering the land or publishing or disseminating any material asserting that he

has an interest: Namul Pty Ltd v Milovan Stankovic [2013] NSWSC 115.

6 It appears to be common ground that the defendant parked his vehicle in the

Kellyville Plaza Coles car park on a relatively continuous basis from at least

October 2014 until around October 2015. His vehicle is now parked outside

Kellyville Woolworths, however Mr Stankovic continues to visit the Kellyville

Plaza on about a daily basis and in particular visits Gloria Jeans where he

charges the battery of his mobility scooter.

Procedural history

7 On 23 October 2015, the plaintiffs filed a Summons seeking interlocutory and

final relief.

8 On 28 October 2015, Ball J made an interlocutory order that the defendant

remove from Kellyville Plaza himself and any property in his ownership,

custody, possession or control, including his vehicle. His Honour further made

orders restraining the defendant from entering upon or remaining on any part of

the land, and permitting the plaintiffs to remove any of the defendant’s property

if the defendant did not comply with the first order (but not authorising the

plaintiffs to use force to remove any of the defendant’s property). The

defendant did not appear on that occasion.

9 On 2 November 2015, the defendant filed a notice of motion seeking an order

that the interlocutory orders made by Ball J be set aside. Mr Stankovic

enclosed an affidavit sworn 30 October 2015 in which he deposed that he was

a patient at Westmead Hospital on 28 October 2015.

10 On 9 November 2015, White J made an order dismissing the defendant’s

notice of motion. His Honour accepted that “the defendant’s non-appearance is

satisfactorily explained” but was of the view that “the facts upon which Ball J

found that there was a very strong case that the defendant has in the past

trespassed on the land and is likely to continue to do so unless restrained,

have not been challenged in any plausible way on this application”.

Chronology

11 It is convenient to first set out a chronology of the history of interactions

between the defendant and the plaintiffs.

12 The evidence of Mr Geordie Bunting, the plaintiffs’ Senior Centre Manager for

NSW during the relevant period, is that for about four weeks in October 2014,

the defendant’s vehicle was continuously parked on the plaintiffs’ land in the

Coles car park. Mr Bunting has provided a photograph of the Car Parking

Terms and Conditions displayed on signs in the Coles car park which

relevantly provide as follows:

Adhere to Directions

4. You must adhere to all parking signs and directions and comply with all verbal or other directions given to us or any person authorised by us.

Hours of operation

5. You must not enter or remain in, or allow any vehicles or other property to remain in the car park other than during the hours of operation displayed on signs throughout the car park.

13 The hours of operation of the Coles car park are 6 am to 12 am. Mr Bunting

has also provided a photograph which appears to indicate that parking is

restricted to three hours.

October 2014 banning notices

14 Mr Bunting’s evidence in his affidavit of 26 October 2015 is that on 16 and 20

October 2014, Mr Peter Twigg, an employee of ACS Integrated Services

Providers (ACS) serving as Kellyville Plaza Centre Duty Manager, issued

banning notices to the defendant revoking any express or implied licence

allowing the defendant to enter or remain upon the premises. While Mr Bunting

accepted in cross-examination that he did not sign the banning notices (T15),

Mr Bunting stated that ACS “have our authority” to issue banning notices (T14).

15 Annexed to Mr Bunting’s affidavit are copies of the banning notices which

provide as follows:

NAME: MILOVAN STANKOVIC

ADDRESS: NO FIXED ADDRESS

PHONE: -

TYPE OF OFFENCE: SQUATTING – OFFENSIVE BEHAVIOUR

I PETER TWIGG being a Manager/Representative of Coles Group Limited (Site Name) Kellyville Plaza (Business or shopping Centre Management) DO HEREBY REVOKE any expressed or implied licence allowing you to remain upon the premises of: Coles Kellyville Plaza, bound by (defined boundaries are) WRIGHTS RD AND YORK RD.

This TERMINATION OF LICENCE will operate and be enforced for a period of 12 months from the date of service upon you

…

16 The defendant stated in cross-examination that he did not accept the banning

notices from Mr Twigg (T63). The defendant indicated that in his view, Mr

Twigg could not issue banning notices because Mr Twigg was “a cleaner

employed by the different company” and had “no authority” to serve the notices

(T7, 66). The defendant made several allegations against Mr Twigg during the

hearing of this matter, including allegations that Mr Twigg put rubbish in the

defendant’s vehicle and has falsely alleged that the defendant has undressed

in public (T7, 55).

17 The defendant’s evidence is that Mr Twigg passed the banning notices to the

police (T63), and that the defendant told the police “that this is civil proceeding,

as a – as a civil proceeding police have no say in it” (T63-4). In the defendant’s

view, the landowner “did not even know” about the banning notices (T65).

18 It should be noted that Mr Twigg is no longer an employee of the plaintiffs and

that the plaintiffs have been unable to make contact with Mr Twigg aside from

serving him with a subpoena.

19 The plaintiffs indicated at the hearing of this matter that they “primarily rely on

the second set of banning notices” it seems on the basis of the unavailability of

Mr Twigg (T6).

Events subsequent to October 2014

20 Mr Bunting states in his affidavit that after the service of banning notices upon

the defendant by Mr Twigg, the defendant “temporarily removed himself and

his vehicle” but subsequently returned. Mr Bunting’s evidence is that the

defendant then attached a tarpaulin to the side of his vehicle. The vehicle is

“festooned with large printed signs/stickers”. The vehicle and tarpaulin are

evidenced by photographs annexed to Mr Bunting’s affidavit.

21 Mr Bunting’s evidence is that on 9 July 2015, a memorandum was sent to retail

tenants requesting that they contact security if the defendant is seen inside the

Plaza. In cross-examination, he gave evidence that he was aware of the

memorandum and that around this time, he attended the Plaza with a security

guard “to ensure that [the defendant] weren’t provided access to the centre”

(T17). His evidence is that he had “a responsibility to act on the – on the issues

which are brought to our attention from our customers and our retailers” (T18).

22 Mr Bunting’s understanding is that on 25 August 2015, the defendant was

convicted under s 4 of the Inclosed Lands Protection Act 1901 (NSW) and

fined $250 however the defendant has appealed the conviction. In this respect,

the defendant alleges that the car park is not an “inclosed land” within the

meaning of the Inclosed Land Protections Act 1901 (NSW) because the car

park has “is never, ever closed” and is not gated (T8, 57, 68-9). For the

purposes of the present proceedings, it is neither necessary nor appropriate for

me to decide that issue.

Notice of 30 September 2015

23 Mr Bunting’s evidence is that on 30 September 2015, the plaintiffs served a

further notice on the defendant to cease trespassing. The evidence of Ms Clare

Jordan, a Senior Associate at JBT Lawyers, in her affidavit of 22 October 2015

is that she prepared the notice.

24 The evidence of Mr Hoare, a licenced process server, in his affidavit of 22

October 2015 is that the defendant refused to accept the document so Mr

Hoare affixed it to the defendant’s vehicle. Mr Hoare states that the defendant

then gave him a mobile telephone number. That telephone number appears to

be the same as the number displayed on the defendant’s vehicles in

photographs annexed to the affidavit of Mr Bunting.

25 The evidence of Mr Hoare is consistent with the defendant’s evidence in cross-

examination that he refused to accept the notice and that “the man come and

attempted to, to – that who delivery to, to actually stick on my, on, on my van”

(T69).

26 It should be noted that the plaintiffs concede that there is an error in the notice

of 30 September 2015 with respect to the folio numbers but submit that it was

“clear to Mr Stankovic that he wasn’t welcome” (T115).

27 Ms Jordan states that on 1 October 2015, she telephoned the defendant on the

number obtained by Mr Hoare. Ms Jordan’s evidence is that when asked

whether he would move to enable the refurbishment works to be completed,

the defendant responded with words to the effect “100% guaranteed I will

move” and “there will be no delay on my side”. Ms Jordan states that when she

informed the defendant that the plaintiffs required him to move immediately, he

responded that he needed “about seven days” to pack and move. Ms Jordan

further states that on 7 October 2015, a paralegal employed by JBT lawyers

contacted the defendant by telephone. The defendant said that his truck had

had a flat battery and that he anticipated leaving by 9 October 2015.

28 Mr Bunting’s evidence is that the defendant then moved his vehicle on the

weekend of 10-11 October 2015 to a parking space closer to the Plaza

entrance. In this respect, the defendant gave evidence that he moved closer to

the entrance to the Kellyville Plaza because the police told him “people will

killing you here for $10 for drugs” (T58).

29 Mr Bunting’s evidence is that also on 15 October 2015, the plaintiffs then

organised for a tow truck to remove the defendant, his vehicle and his property

with security guards and local police in attendance. His evidence is that the

defendant eventually drove off the land but returned about 90 minutes later.

Two security guards attempted to prevent the defendant entering the car park

but the defendant drove the vehicle into the security guards, causing a minor

knee injury to one of them. Mr Bunting asserts that since the attempted

removal of the defendant, he has “repeatedly returned to the land with his

vehicle”.

30 The evidence of Mr Bunting is consistent with the evidence of Mr Jacob

Lambkin, the Contract Manager for ACS in 2014-2015, who also gave

evidence at the hearing of this matter about the events of 15 October 2015. Mr

Lambkin’s evidence is that he cannot remember exactly who from Coles

organised the events of that day (T46), but that the police were called “because

you were told you were not allowed to re-enter the car park. We had security

there standing at the car park entries at the driveways to which you physically

drove forward and physically hit one of our security guards” (T49).

31 In cross-examination, Mr Bunting gave evidence that when the defendant

drove off on 15 October 2015, “there was a lot of items left behind” (T24). His

evidence is that certain belongings, including a damaged mobility scooter, are

still “on site at Kellyville” (T20). Mr Bunting stated that he received a report that

the defendant rode or drive his mobility scooter “into one of the ATM bollards at

the front of the centre” and that that is how the scooter became damaged

(T20). Mr Bunting stated that other belongings that were “considered rubbish”

or “considered a health and safety risk” were placed in a skip bin (T22).

32 I should note that the defendant was to some extent preoccupied at the hearing

of this matter by the damage allegedly done to his second mobility scooter that

remains at Kellyville Plaza. As I indicated at the hearing of this matter, the

defendant has not filed any cross-claim with respect to the alleged damage and

I do not propose to deal with it in disposing of these proceedings.

Complaints against the defendant

33 Mr Bunting’s evidence is that the plaintiffs have received verbal and written

complains about the defendant, including allegations that the defendant has

verbally abused persons with disabilities, driven his vehicle dangerously in the

car park, urinated in the car park gardens, undressed beside his vehicle,

accumulated rubbish that may pose a fire or safety hazard, and told customers

to shop elsewhere. Mr Bunting has also provided a letter from the Hills Shire

Council dated 18 May 2015 noting that complaints about the defendant have

been made to the Council.

34 Mr Bunting states that, when attending Kellyville Plaza on a weekly basis, the

defendant “abuses me and uses derogatory language to describe me” and “will

often tell people within earshot that I have breached the protocol regarding the

treatment of homeless persons”.

Defendant’s recent presence at the Kellyville Plaza

35 Mr Lambkin gave evidence that he saw the defendant in the Plaza via CCTV at

5:30am on 14 June 2016 (T41). Aside from CCTV, Mr Lambkin gave evidence

that he last saw the defendant in the Plaza “around two to three weeks ago”

(T41).

36 The defendant himself gave evidence in cross-examination that he is “there

every day” (T69).

37 The defendant’s evidence is that he uses the chemist in the Plaza, purchases

coffee in the Plaza from Gloria Jeans and elsewhere, and charges his mobile

scooter (T76-77). He also states that his doctor and dentist are located in

Health Centre Point Medical & Dental Centre in the Kellyville Plaza, although

his evidence is that he has not been to the dentist for about two years and

cannot afford the price of the new dental plate he requires (T99).

38 The defendant’s evidence is that he has been treated by doctors at the Health

Centre Point Medical & Dental Centre since about 2008 or 2009 (T97). The

defendant tendered the business cards of two treating doctors that indicate that

the surgery opening hours are: 8am to 7pm on Monday, Tuesday, Wednesday

and Friday; 8am to 9pm on Thursday; 8am to 5pm on Saturday; and 10am to

2pm on Sunday. The defendant has also tendered a medical report that

indicates that since July 2015, the only prescriptions that the defendant has

been given were for Panadeine Forte in February 2016 and Augmentin Duo

Forte in 28 March 2016. The defendant indicated that his leukaemia was in

remission (T96) but that he attends the medical centre about every two months

for blood sugar monitoring (T102). He also made the following remarks as to

his attendance at the practice (T123):

I’m going there almost three days or so. They check my, my sugar level. I going there when I am hurt, I’ve been hurt and then I go there. …

39 Annexed to the affidavit of Mr Bunting sworn 15 June 2016 is a floor plan of the

Kellyville Plaza. The floor plan reveals that Gloria Jeans is separated from the

Health Centre Point Medical & Dental Centre by one store and a corridor.

Marked on the floor plan are three pedestrian entrances to the Plaza. Mr

Lambkin also gave evidence that the Plaza can be accessed in the following

ways (T42, 52):

 via the ALDI car park

 via “a ramp going from the Coles-Woolworths car park, that brings you down onto a tiled area out the front of the actual complex”

 via the Wrights Road main entrance

 via the loading dock

Is the defendant a trespasser?

40 The plaintiffs submit that there is an implied licence generally to members of

the public to access the Coles car park however that that licence is limited by

signage (T108). The plaintiffs’ allege that by breaching the Car Parking Terms

and Conditions, the plaintiff automatically became a trespasser.

41 The plaintiffs also submit that any implied licence granting the defendant

access to the Plaza was revoked by the banning notices of October 2014 and

the further notice of 30 September 2015.

42 The plaintiffs emphasise the remark of the plurality in Halliday v Nevill (1984)

155 CLR 1 at 7 that:

[A]n implied or tacit licence can be precluded or at any time revoked by express or implied refusal or withdrawal of it.

43 Although a litigant in person whose ability effectively to test evidence filed

against him is limited, I accept as reliable the evidence of Mr Bunting as to his

observations concerning the conduct of the defendant.

44 I am satisfied that the defendant was in breach of the Car Parking Terms and

Conditions by failing to abide by signage restricting parking to a maximum of

three hours upon parking and by remaining with his vehicle in the car park

outside the hours of operation.

45 I am also satisfied that any licence granted to the defendant was effectively

terminated by the banning notices on 16 and 20 October 2014 and 30

September 2015. I accept Mr Bunting’s evidence that Mr Twigg had the

appropriate authority to issue the October 2014 notices on behalf of the

plaintiffs. I am also of the view that, even on the defendant’s evidence, Mr

Twigg at least made reasonable attempts to serve the October 2014 notices

and that the defendant was aware of their contents. I am also satisfied, on the

evidence of both Mr Hoare and the defendant, that Mr Hoare effectively served

the 30 September 2015 notice by affixing the notice to the defendant’s van.

That is supported by Mr Hoare’s evidence that he obtained the defendant’s

mobile number, being the same number later used by Ms Jordan to contact the

defendant. I also accept the evidence of Mr Lambkin which the defendant does

not really dispute.

Dedication

46 The defendant submits that he was not a trespasser on the basis that the land

was “dedicated” for public use. He alleges that because, in his view, the land

was dedicated, “you cannot choose who coming there” (T64). He did, however,

accept that “when the shop is closed, it’s go back to the owner” (T64).

47 In Casson v Leichhardt Council [2011] NSWLEC 423; 186 LGERA 34, Biscoe J

described the process of dedication at common law as follows (at 46):

At common law the making of a public road required the fulfilment of two conditions: the owner manifests an intention (a quasi offer) to dedicate the land as a public road, and acceptance by the public of the proffered dedication. These are questions of fact. Such acceptance is usually inferred by sufficient public user of the land as a road (ie as a passageway) or by a public body having authority to take it over on behalf of the public doing so (for example, expending money in forming or maintaining it). When a road is left in a subdivision and runs into a public road system, the inference usually to be drawn is that the owner intended to dedicate it as a public road unless access is prevented by fencing or other action.

48 In Owen v O’Connor [1963] SR (NSW) 1051, Sugerman J similarly noted (at

1053):

Dedication presupposes an intention to dedicate – an animus dedicandi. It may be presumed from open and unconcealed user as in exercise of a public right and without interruption by the owner of the land – such a user that the owner must be taken to have been aware of it and with his apparent acquiescence so as to lead to a reasonable belief in the minds of the public that the land was a highway; or it may be presumed from other circumstances.

49 In Shire of Narracan v Leviston (1906) 3 CLR 846 at 861, Griffith CJ described

dedication by a private landowner in the following terms:

We must bear in mind that dedication means that the owner of the land intends to divest himself of any beneficial ownership in the soil, and to give the land to the public for the purposes of a highway …

50 In my view, the evidence does not establish that the Coles car park was

“dedicated” for public use. Even if one assumes, as the defendant contends,

that the common law concept of dedication extends beyond roads and lanes to

car parks (although it was argued that a car park had been “dedicated” in

Cavric v Willoughby City Council [2015] NSWCA 182, the purported

“dedication” was that the car park was a public road because it could be used

as a throughfare, and in any event it was held that there was no dedication at

common law or in accordance with any statutory provision), a “dedication”

requires conduct on the part of the landowner that evinces an intention to

dedicate the land for public use and acceptance by the public of the proffered

dedication: Newington v Windeyer (1985) 3 NSWLR 555 at 558-9 (McHugh

JA). Use of the land by “invitees and licensees” with the permission of the

occupiers does not amount to an expression of an intention to dedicate land

(Newington v Windeyer at 562). In the present case, the landowners erected

signage displaying the Car Parking Terms and Conditions. It is clear that the

plaintiffs intended to retain control over the car park and that public access was

subject to conditions. While it does not appear that the car park is or has been

gated, in my view, the display of conditions on signage in the car park would be

“other action” indicating that the owner does not intend to dedicate the car park

for public use within the meaning of Biscoe J’s remarks in Casson v Leichhardt

Council.

The Protocol

51 The defendant in his affidavit of 30 October 2015 and his oral evidence also

submits that he is protected by the “Protocol for Homeless People in Public

Places August 2015” used by Housing NSW. That Protocol states that

homeless persons are not to be approached except under certain

circumstances such as where they request assistance. I am of the view that the

Protocol does not assist the defendant’s case. The Protocol relevantly

provides:

Where the Protocol applies

The Protocol applies only to public places such as parks and outdoor spaces ordinarily accessible to the public. It does not apply to private property, or property which is not generally accessible to the public.

…

52 As I am of the view that the plaintiffs’ land has not been “dedicated” to public

use, it follows that in my view, the plaintiffs’ land remains private property and

therefore is not subject to the Protocol.

53 It follows from the above that I am satisfied that the defendant is a trespasser.

Should a permanent injunction be granted?

Principles

54 In Reliance Finance Corporation Pty Ltd v Orwin Walshe & Ward [1964-5]

NSWR 970, McLelland CJ in Eq stated at 976 that:

The general position in England in relation to injunctions in respect of trespass since the Judicature Act is discussed at length in Kerr on Injunctions, at pp. 90, etc. At p. 93, it is said: “In the case of trespass of a continuing nature, however, the Court will generally interfere by injunction, and the Court will interfere by injunction where the trespass, although not of a continuing nature, is serious, or threatened to be repeated”; and many cases are cited in support of these submissions. I am of the opinion that these words also correctly describe the jurisdiction of this Court at the present time. (emphasis added)

55 A more modern statement of the principles applicable to the grant of injunctive

relief in cases of trespass was provided by Slattery J in Lord v McMahon [2015]

NSWSC 1619 at [166]-[170]:

[166] Injunctions and Trespass. … Ordinarily if damages were an adequate remedy, a plaintiff should be relegated to that remedy and only if damages were an inadequate remedy will an injunction lie: RP Meagher, JD Heydon, MJ Leeming, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (5th ed 2015, Butterworths LexisNexis) at [21-040].

…

[168] But generally speaking, equity will not regard common law damages as an adequate remedy for an injury to land: PW Young, C Croft, ML Smith, On Equity (1st ed 2009, Thomson Reuters) at [16.210]. And equity has long granted injunctions in the auxiliary jurisdiction to restrain trespasses to land or the continuation or repetition of such trespasses: Thomas v Oakley (1811) 18 Ves 184 at 186; 34 ER 287 at 288. Prima facie a landowner is entitled to an injunction to restrain a trespass: Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) ATR 81 – 930 (“Break Fast”).

[169] But if there is no question of irreparable injury involved, the injunction may nevertheless not be granted. Injunctions have been refused because the

trespass involved no appreciable damage to a plaintiff: Behrens v Richards [1905] 2 Ch 614. Authorities to the contrary on this issue are probably unsupportable: Jaggard v Sawyer [1995] 1 WLR 269 and RP Meagher, JD Heydon, MJ Leeming, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (4th ed 2002, Butterworths LexisNexis) at [21-110].

[170] In this context the so-called “good working rule” stated in Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 (“Shelfer”) has often been applied in Australia: Break Fast. The rule, which is perhaps no more than a guide to the exercise of the Court’s Lord Cairns Act discretion to award damages in lieu of an injunction, allows that damages may appropriately be awarded in lieu of an injunction in trespass cases where: (1) the injury is small, (2) is capable of being estimated in money, (3) may be compensated by small money payment, and (4) the grant of an injunction would be oppressive to the defendant. (emphasis added)

56 In Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd [2007] VSCA 311,

the Victorian Court of Appeal stated that:

[36] According to longstanding equitable principle, the breach or invasion of a proprietary right, or a sufficient risk thereof, founded a prima facie entitlement to an injunction or specific performance. The unavailability of equitable damages prior to Lord Cairns’ Act entrenched that principle.

…

[39] In Shelfer, the Court of Appeal made plain that the unprecedented statutory power to award damages in equity did not introduce damages as the standard remedy for trespass, whereby wrongful acts could routinely be sanctioned by the effective ‘purchase’ of the landowners’ rights. Rather, it was necessary to make out a special case for the court to exercise its jurisdiction to award damages under Lord Cairns’ Act. Although the Court of Appeal emphasised that an injunction remained the prima facie remedy for trespass, AL Smith LJ articulated, in ‘a good working rule’, guidance as to when, exceptionally, damages would be appropriate.

…

[46] While the factors potentially relevant to the exercise of the discretion cannot be exhaustively stated, Shelfer, in my opinion, correctly accorded primary importance to identifying a small injury to the plaintiff, and disproportionate hardship constituting oppression, to the defendant.

[47] In determining whether a substitution of damages for in specie relief is just, the interests of the parties are not of broadly equivalent weight. It will not suffice that the hardship entailed to the defendant by an injunction marginally outweighs the relief that the plaintiff will obtain thereby. Rather, the courts have typically required a significantly disproportionate damage to the defendant, reflected in the criterion of oppression in the Shelfer working rule.

[48] In that sense, the Shelfer working rule itself implicitly assumes that in order to justify the substitution of damages, it is ordinarily necessary that there be a relationship of significant disproportion between the relief afforded to the plaintiff’s injury and hardship to the defendant entailed by the grant of an injunction.

[49] The question whether to substitute damages for an injunction for trespass to land is necessarily determined after the plaintiff (in contrast to an applicant for an interlocutory injunction) has established the invasion or breach of its property right. Ordinarily, in such circumstances, unless the hardship to the defendant entailed by a specific remedy is out of all proportion to the relief thereby assured to the plaintiff, the plaintiff should not be compelled to exchange or suffer continuing invasion of its proprietary right for a money payment at the behest of the wrongdoer.(emphasis added)

57 I note that in relation to the Shelfer “working rule”, the Supreme Court of the

United Kingdom has recently cautioned that each case is “likely to be fact-

sensitive” and that the so-called rule should not be used to fetter judicial

discretion: Lawrence v Fen Tigers Ltd [2014] AC 822; [2014] 2 All ER 622 at

[120]-[121].

58 The significance of hardship to the defendant to the grant of injunctive relief is

helpfully summarised in Spry’s The Principles of Equitable Remedies (9th ed,

2014) at 413-4:

Considerations of hardship to the parties are of critical weight where the right to an interlocutory or interim inunction is being considered, especially since, ex hypothesi, the rights of the parties have not yet been finally ascertained. But when at the final hearing the court is called on to decide whether an injunction or an award of legal or equitable damages should be ordered, it must necessarily have been determined that the defendant is in breach of the rights of the plaintiff or will be in breach if the apprehended acts take place. Accordingly considerations of hardship on the part of the defendant are ordinarily of much reduced weight. He must now be regarded either as a wrongdoer, or at least as a potential wrongdoer, rather than a person who may ultimately be shown to be acting according to his legal rights. Nonetheless the grant of an injunction is always a matter of discretion; and, in particular, the following matters are taken into account by courts with equitable jurisdiction.

…

[T]he court may in its discretion decline to grant an injunction if to do so would result in such substantial hardship to the defendant that, account being taken of any detriment that the plaintiff will suffer on his being confined to damages, disproportionate prejudice would be caused by its intervention. Here it must be remembered that the plaintiff whose rights are threatened to be breached has prima facie an equitable right to have the breach restrained and that he will be denied specific relief only in exceptional cases. …

59 Relevantly for the purposes of the present case I also note the importance of

granting injunctions in “clear and unambiguous terms which leave no room for

the persons to whom they are directed to wonder whether or not their future

conduct falls within the scope or boundaries of the injunction”: ICI Australia

Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 259;

Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41;

150 FCR 110 at [40]; Ross v Lane Cove Council [2014] NSWCA 50 at [29].

60 Injunctive relief may be declined as a matter of discretion where such relief

would be futile or of little utility: see e.g. Lets We Forget Pty Ltd v Westpac

Banking Corporation [2005] 56 ACSR 126 at [20]; Street v Luna Park Sydney

Pty Limited [2009] NSWSC 1 at [271]-[273].

Submissions

61 The plaintiffs submit that a permanent injunction should be granted restraining

the defendant from accessing any part of the Kellyville Plaza. They argue that

they are “entitled to exclude anyone we want” (T83) and that although parts of

the premises are leased to other businesses such as Gloria Jeans, there is a

“moat of land owned by the two plaintiffs surrounding and criss-crossing the

centre” such that the leased premises cannot be accessed except by traversing

the plaintiffs’ land (T113).

62 The plaintiffs emphasise that the defendant has been in the Plaza in breach of

Ball J’s orders and submit that, despite the lack of evidence of “recent

provocative disruption” (T91), there is a “risk of friction” between the defendant

and the owners, occupants and other persons in the Plaza (T120). The

plaintiffs also emphasise that the defendant “views the property as public land”

(T110, 119), has an “emotional attachment” to the adjoining land (T11) and has

a “strong view” concerning the Protocol (T111).

63 The plaintiffs further submit that there is no evidence that the defendant would

experience significant disproportionate hardship in the event that an injunction

was granted as there is a “paucity” of medical evidence and in particular “no

evidence of imminent medical issue” (T116-8). The plaintiffs also rely upon the

affidavit evidence of Ms Jordan to the effect that on 15 June 2016, she

contacted the Kellyville Family Medical Centre and Barwell Medical Centre who

both stated that they are accepting new patients and that bulk billing is

available in certain circumstances. Annexed to Ms Jordan’s affidavit are

Google Maps which indicate that those practices could be accessed from the

Kellyville Plaza by public transport in about 15 or 20 minutes, although each

route would involve a walk of at least 5 minutes or so.

64 The defendant was adamant that he had done nothing wrong. He however is

equally adamant it seems to me that because he is homeless, and the land is

public land, he is entitled to continue to access it. In addition he wants to

continue to access his current medical practitioner in the Plaza.

Consideration

65 I am of the view that it is appropriate to grant a permanent injunction restraining

the defendant from entering upon or remaining on the Kellyville Plaza or

leaving any property on the land.

66 The threat of repetition of the trespass is I consider real; the defendant himself

admits that he frequents the Plaza on a daily basis and it is clear that the

defendant has an emotional attachment to the area due to its proximity to the

land that he alleges has been stolen from him.

67 While I have considered the option of carving out access to the Plaza to enable

the defendant to attend the medical centre for an indefinite period, I am of the

view that the hardship that will be experienced by the defendant in having to

make alternative arrangements for medical care in the area is insufficient to

deny the plaintiffs the relief that they seek and that they are prima facie entitled

to. The defendant has indicated that he is able to take public transport using

his current mobility scooter and indeed has managed to attend the hearing of

this matter by bus (see T126-7).

68 In light of the proximity between the medical centre and Gloria Jeans and the

defendant’s current daily attendance at Gloria Jeans, I am of the view that any

carve out to attend the medical centre would be likely to give rise to continuing

conflict between the plaintiffs and the defendant. However any order which

would have the effect of immediately preventing the defendant from attending

the medical centre in the Plaza would impose in my view a hardship, but only a

modest one. In my view, any order should allow for a transitional period such

that he should be able to use the medical centre for a period of two months but

during that time make alternative arrangements for health care elsewhere. The

reason I have chosen two months is that the defendant indicated he had at

least blood sugar tests every two months (T102). However, during that period

he would not be permitted to enter the Plaza for any other purpose.

69 Certain orders were proposed by the plaintiffs in the course of these

proceedings. In general I am in agreement with these orders subject to the

carve out referred to above in [68]. I therefore invite the plaintiff to prepare

short minutes of order in accordance with my reasons. I will also hear the

parties on costs if necessary.

**********

Amendments

23 June 2016 - Paragraph [61] change "plaintiffs' submit" to "plaintiffs submit";

change "went" to "want"