Blacktown City Council v Sharp [2000] NSWSC 339

Reported Decision : [2000] 10 BPR 18,107

New South Wales Supreme Court

CITATION : Blacktown City Council v Sharp [2000] NSWSC 339 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2034/00 HEARING DATE(S) : 11/04/2000 JUDGMENT DATE : 11 April 2000

PARTIES : Blacktown City Council (P) Christopher Sharp (D) JUDGMENT OF : Young J

COUNSEL : G Sirtes (P) Defendant in person SOLICITORS : Taylor Kelso (P) CATCHWORDS : Equity [355]- Injunctions- Trespass to land- When granted. Beaton v McDivitt (1985) 13 NSWLR 134 Hirschberg v Flusser (1917) 101A 191 (New Jersey Equity) Lincoln Hunt Aust Pty Ltd v Willesee (1986) 4 NSWLR 457 CASES CITED : Llandudno Urban District Council v Woods [1899] 2 Ch 705 Lowndes v Bettle (1864) 33 LJ Ch 451 North Union Railway Company v Bolton & Preston (1843) 3 Ra & Can Cas 345 Reliance Finance Corporation Pty Ltd v Orwin (1964) 82WN (NSW) (Pt 1) 11 University of Sydney v Greenland [1970] 2 NSWR 350 DECISION : See paras 20-23

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION YOUNG J TUESDAY 11 APRIL 2000

2034/00 - BLACKTOWN CITY COUNCIL v CHRISTOPHER SHARP

JUDGMENT

1 HIS HONOUR: On 7 April 2000 the then Duty Judge granted ex parte an order that the defendant be restrained from entering upon what was described as the Council car park near Mount Druitt Station and stood the matter over to today. The injunction was made until further order. 2 Today the plaintiff appears by counsel asking that that order continue in operation. The defendant appears in person and asks that the matter go over until next week and also that the order be discharged in the meantime. 3 The evidence before the court is very sketchy. So far as the plaintiff is concerned, there is evidence that the subject land is owned by Blacktown City Council ("the Council") in fee simple. There is no doubt at all that on part of the land the defendant has erected a large marquee together with portable toilets and ancillary structures and conveniences. 4 The plaintiff, by its counsel Mr Sirtes, says that the subject land is a car park and people cannot park there while this marquee is there. The Council is concerned about public risk insurance. The Council does not want the marquee there and can see no reason why its land should be used by the defendant. 5 The defendant from the bar table says he has $20 million worth of public risk insurance, that he has been in touch with the Council, that he is going to address the Council tomorrow night, that the car park is under-utilised and there is, even with his marquee, more than sufficient space for people who want to park close to the railway station to park there. 6 The plaintiff, by its counsel, says that what the defendant says is said from the bar table and not sworn evidence. That is so, but a lot of the material from which I should infer I should grant an injunction is also coming from instructions rather than evidence. 7 The Equity Court is traditionally reluctant to grant injunctions against trespasses. That reluctance comes from two sources. First, last century, there was a judicial problem between the action of ejectment at common law and injunctions to restrain trespasses in equity. Equity left most of these matters to the common law. 8 Secondly, the prime feature of equitable relief is that damages are not an adequate remedy and that in most cases trespasses were properly the matter for an action in damages. 9 It was only about the middle of the nineteenth century in cases such as North Union Railway Company v Bolton & Preston (1843) 3 Ra & Can Cas 345, 355 that equity started granting injunctions in trespass, other than in cases as to waste. The authorities were reviewed by Kindersley VC in Lowndes v Bettle (1864) 33 LJ Ch 451. 10 This century, equity has taken a more open attitude, though for the reasons set out in paragraph [2121] of the third edition of Meagher, Gummow & Lehane, Equity Doctrines and Remedies (Butterworths, 1992) many of the recent English cases appear to have overlooked the problem that equity only interferes where common law damages are insufficient. 11 Just because land is public land is not necessarily a reason why the court should grant an injunction. Thus in Llandudno Urban District Council v Woods [1899] 2 Ch 705 Cozen-Hardy J declined to prevent a clergyman preaching on a beach without council consent. 12 However, in the last 20 years equity has considered that there may be some situations where it is appropriate to grant injunctions. One is where there is a wholesale occupation of public land by protesters; see University of Sydney v Greenland and others [1970] 2 NSWR 350. Another is where television personnel doing their work of investigative journalism seek to invade land; see Lincoln Hunt Aust Pty Ltd v Willesee (1986) 4 NSWLR 457. 13 A similar attitude has been taken in the United States; see, for instance, Hirschberg v Flusser (1917) 101A 191 (New Jersey Equity); and see Spry on Equitable Damages, 5th ed (LBC Information Services, 1997) p 391. 14 Although the first of these traditional objections to granting injunctions in trespass because ejectment covers the field is now obsolete, see Beaton v McDivitt (1985) 13 NSWLR 134, the rule that equity only grants an injunction in trespass in special cases where damages are shown not to be an adequate remedy still continues. 15 The present case is a borderline case. If there is sufficient evidence that it is a public car park and that there is public inconvenience the case would fall the Council's side of the line. There is little evidence of this to date. 16 If, on the other hand, there is not that evidence, then even though it is public land and even though what the defendant is doing is a trespass on land that does not belong to him, it may be that the court would leave the parties to their remedies in damages. 17 However I must stress that a trespass which continues for a longer period of time may, of itself, be such that damages are not an adequate remedy and equity would grant relief: Reliance Finance Corporation Pty Ltd v Orwin (1964) 82 WN (NSW) (Pt 1) 11. 18 At the moment things are finely balanced. I do not think it is appropriate, whilst there are meaningful discussions between the parties, to leave the defendant in the situation where there is an injunction against him which can be used to put bargaining pressure on him. 19 Accordingly, it seems to me that for the week that will be necessary to conduct negotiations and present the evidence in proper form, the injunction should be removed. 20 I thus discharge the injunction granted ex parte. 21 I stand the matter over to the Duty Judge's list on 20 April 2000. 22 All the evidence on which the plaintiff relies is to be filed and served no later than 14 April; the defendant's evidence to be filed and served no later than 4pm on 18 April. 23 Costs of today are reserved.