Tipler v Moreton Bay City Council
[2025] QSC 194
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- Notable Unreported Decision
- Tipler v Moreton Bay City Council[2025] QSC 194
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Tipler v Moreton Bay City Council[2025] QSC 194
Tipler v Moreton Bay City Council[2025] QSC 194
SUPREME COURT OF QUEENSLAND
CITATION: | Tipler & Ors v Moreton Bay City Council [2025] QSC 194 |
PARTIES: | HARLEY TIPLER (First applicant ) SHERRENE REILLY (Second applicant) KARL-HEINZ EICHIN (Third applicant) MAERIE DOELAND (Fourth applicant) STACEY RICHARDSON (Fifth applicant) MATTHEW JENKINSON (Sixth applicant) TRENT LUGGE (Seventh applicant) NICHOLAS CARBONE (Eight Applicant) NICHOLAS MCKINLAY (Ninth Applicant) STEVEN BOBELDYK (Tenth Applicant) ANGELA BOBELDYK (Eleventh Applicant) v MORETON BAY COUNCIL (Respondent) |
FILE NO/S: | BS 2741/25 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | Ex tempore reasons delivered 15 August 2025, |
DELIVERED AT: | Brisbane |
HEARING DATE: | 15 August 2025 |
JUDGE: | Smith J |
ORDER: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – JUDICIAL REVIEW – where the applicants were homeless and sleeping rough in Kallangar – where the respondent decided they should be prohibited from camping on public land – whether this decision was incompatible with the Human Rights Act 2019 (Qld) – whether an interlocutory application should be granted – whether the respondent failed to give proper consideration to the applicant’s human rights in making the decisions EQUITY – INTERLOCUTORY INJUNCTIONS – whether an interlocutory injunction should be granted until trial – whether serious question to be tried – whether the balance of convenience militates in favour of an injunction Alteration of Public Land Local Law 2023 ss 9, 19 Camping on Public Land Local Law 2023 s 13 Human Rights Act 2019 (Qld) ss 8, 13, 16, 17, 25, 26, 58 Judicial Review Act 1991 (Qld) ss 7 Local Government Act 2009 (Qld) Australian Broadcasting Corporation v Lenah Game Meats [2001] HCA 63; (2001) 208 CLR 199, applied Australian Broadcasting Corporation v O'Neil [2006] HCA 46; (2006) 227 CLR 57, applied Johnstone v Carroll [2024] QSC 2; (2024) 329 IR 365, considered Kellogg Brown & Root Pty Ltd v Australian Aerospace Ltd [2007] VSC 200, applied Kestrel Coal Pty Ltd v CFMEU [2001] 1 Qd R 634, considered S.N. Allen & Sons Ltd v Clifton [1902] St R Qd 167, cited |
COUNSEL: | Mr M. Hickey OAM KC, Mr H. Clift and Mr N. Miranda for the applicants Mr S. McLeod KC and Ms F. Nagorcka for the respondent |
SOLICITORS: | Basic Rights Queensland for the applicants Clayton Utz for the respondent |
Introduction
- [1]The applicants in this case are homeless people and are sleeping rough at 99 Goodfellows Road, Kallangur. They seek judicial review of the decisions made by the council which have the effect of prohibiting them from camping on public land.
- [2]It is argued that the council’s decision was made incompatibly with the Human Rights Act 2019 (Qld) (HRA), and they seek an interlocutory injunction to restrain the council from enforcing these decisions until the hearing of this matter, which at this stage is listed in November of 2025. I have had regard to all of the evidence and the submissions made in reaching my decision.
Background
- [3]Some of the applicants were living at Eddie Hyland Park, which is also public land controlled by the council. They left that location after notices were issued by council officers in April 2025.
- [4]Before February 2025, there was a framework (the Persons Experiencing Homelessness Framework) which permitted people in the applicants’ position to camp on council land which was promulgated under the Local Government Act 2009 (Qld). After receiving complaints about homeless people from residents – in that regard, I have read Mr McCormick’s affidavit and Mr Mansfield’s affidavit – on 26 February 2025, the council announced it would repeal the camping framework with effect on 12 March 2025.
- [5]At that time, almost all the applicants were homeless and sleeping out in the open, albeit, in tents. On the 9th of April 2025, council officers attended Eddie Hyland Park and purported to issue decision and compliance notices to the applicants, which required them to stop storing goods at the park and to stop camping there. It is alleged by the applicants there were very short timeframes. The next day, council officers attended the same park and issued other notices in similar terms. A few weeks later, on 24 April 2025, council employees returned to the park with, on one view, bulldozers, on the other, excavators, and disposed of several of the applicants’ belongings.
- [6]Some of the applicants moved to Goodfellows Road on or around 10 May 2025 and have been sleeping there, rough, since. They applied for statutory review in other proceedings on 22 May 2025 concerning those notices.
- [7]Despite this, on 18 June 2025, council employees attended Goodfellows Road. One of them gave out a map which denoted the area on which they were camping was council land. About an hour later, other employees returned and one of them told the applicants they had two weeks to move, and one applicant alleges that one employee asked him whether he had his paperwork from Eddie Hyland Park stating “Those documents still apply.” He said that they did not have to issue further documentation.
- [8]On 30 June 2025, solicitors for the applicants wrote to the council through its solicitors to ask it not to take further action in light of the fact that proceedings were on foot. No substantive response was received at that point.
- [9]On 2 July 2025, this matter and the related matter came before the court in the applications list and, by consent, orders were made to restrain the council from taking action in respect of the applicants on certain conditions and for this proceeding to be heard with proceeding 2054 of 2025.
- [10]The applicants allege they have not received any offer from the Department of Housing or Local Homelessness Services for more suitable accommodation, although, it seems having regard to paragraph 20 of the respondent’s submissions, there is a factual dispute about that. There is also the recent affidavit of Mr Sheehan.
Applicant’s submissions
- [11]As to the applicants’ submissions, they fear that the council will repeat its actions from Eddie Hyland Park at Goodfellows Road and ask the court to enjoin the council from doing so or from exercising their powers under s 13 of the Camping on Public Land Local Law 2023 (Camping Law) and the Alteration of Public Land Local Law 2023 (Alteration Law) which are the subject of the substantive proceedings. It is submitted that if the council is not restrained, the proceedings would be rendered nugatory, and the applicants would be exposed to a real risk of physical harm. It is submitted that the applicants have demonstrated a prima facie case and the balance of convenience favours them remaining living at Goodfellows Road as homeless people until the issues can be determined by a court.
- [12]It is submitted that there is a prima facie question to be tried, that is, whether the council failed to give proper consideration to the human rights in breach of s 58 of the HRA in respect of all decisions. It is submitted that the rights are statutory rights which have been identified and the applicants are aggrieved and have standing under s 7 of the Judicial Review Act 1991 (Qld). It is submitted that the council has not produced evidence that the council officers engaged in a proper consideration of the human rights in any meaningful way before the decisions. All decisions impose limitations on their rights, and it is for the council to prove justifiable limits under s 13 of the HRA.
- [13]Whilst it is accepted the council is concerned with public health risks, as against this, any course of action by the council would have a serious effect on the applicants’ health and it is submitted that health risks have been mitigated to a significant extent by the installation of bins and a toilet. The applicants rely on various provisions of the HRA and allege that errors occurred under the Alteration Law and submit that there is evidence that the council destroyed belongings, or some of them, without relevant notices. The balance of convenience weighs in favour of the granting of an injunction, bearing in mind that facilities have now been provided by some community groups.
- [14]It was argued the applicants that the council has not said how the applicants can survive, although, material has been provided since that submission.
Council’s submissions
- [15]The council on the other hand submits that the court should not grant an injunction to restrain the enforcement of the valid operation of a law and on the basis of notices which the council, in a letter, says it will not enforce. The council submits that since the repeal of the camping framework, the camping is in contravention of s 13 of the Camping Law, and in those circumstances, the applicants’ challenges to the decisions cannot found the injunctive relief sought. It goes beyond the relief to be sought at trial.
- [16]Success would not prevent authorised officers of the council exercising different powers. It is submitted no injunctive relief is needed because the council has already stated it does not intend to enforce the notices and relies on the letter dated 21 July 2025 exhibited to Mr Gordon’s affidavit.
- [17]It is submitted that the power to seize and impound property only arises once a person fails to comply with the notice. There is no justifiable fear here. There are factual disputes in the material and there are disputes about who has been issued what notice.
- [18]It is submitted that excavators were used simply to dispose of waste on 24 April 2025, and the people at Eddie Hyland Park were given time to pack their belongings and tents were checked for personal belongings before disposal. The court would not accept the evidence of some of the applicants.
- [19]Paragraph 20 of the submissions sets out offers of suitable accommodation made to the applicants which have been declined. It is submitted that the human rights were already limited to an extent, but, in any event, the applicants had a period of time within which to comply with the notices and there is evidence to show the limits on the human rights were justified.
- [20]Under the Camping Law, the council has the power to issue compliance notices for contraventions of s 13 and powers to seize and impound property for non-compliance. An injunction should not be granted where the evidence shows the council will give the applicants an opportunity to seek review and are not entitled to an injunction immunising them from any enforcement of the Camping Law. Despite the efforts of the applicants, there remain public health concerns at Goodfellows Road with respect to rubbish hazards and unhealthy conditions. The council relies on Ms Todd’s affidavit in that regard. In those circumstances, the court should decline to grant an injunction.
Oral submissions
- [21]In oral submissions today, Mr Hickey KC submits that an injunction should be granted. He referred me to the details of the letter dated 21 July 2025 and notes that no undertaking has been provided by the council to not rely on these notices further and the court should draw inferences in that regard. There is a real concern about the applicants losing their homes in the absence of an undertaking.
- [22]It is also pointed out that after the other proceedings were issued, one notice was issued. The balance of convenience militates in favour of the granting of an injunction. He points out that community and charity groups have assisted the applicants at Goodfellows Road. He relies on the case of Kellogg Brown & Root Pty Ltd v Australian Aerospace Ltd [2007] VSC 200.
- [23]He submits these are vulnerable people and relies on the statements made in S.N. Allen & Sons Ltd v Clifton [1902] St R Qd 167 and in Kestrel Coal Pty Ltd v CFMEU [2001] 1 Qd R 634, in particular at paragraph 31 as regards to the failure of a party to provide an undertaking. He also submits there is no prejudice to the council bearing in mind the trial date is in November.
- [24]Mr McLeod KC for the council points out there is a factual dispute concerning the accommodation offers. He submits the council has made it clear it will not take steps to enforce the notices and it is speculative that there is a fear that the applicants will lose their homes. He also relies on the statements made by Justice Chesterman in Kestrel in that regard. I have regard to those principles. He submits that court should not grant injunctions “willy-nilly.” There must be a justifiable fear on the evidence and it is for the applicant to prove its case. The absence of an undertaking is not relevant given there is open correspondence. A fear cannot be based on hypotheses.
- [25]I had regard, of course, to Mr Hickey’s reply in court.
Discussion
- [26]Now, in order for a court to grant an interlocutory injunction, an applicant needs to establish a prima facie case; that damages are not an adequate remedy in the sense that irreparable damage may be caused, and the balance of convenience favours the granting of the injunction. (See ABC v Lenah Game Meats Proprietary Limited [2001] HCA 63; (2001) 208 CLR 199 at [13].)
- [27]In ABC v O'Neill [2006] HCA 46; (2006) 227 CLR 57, Justices Gummow and Hayne noted at [70]-[72]:
- It is not necessary to show it is more probable than not that the applicant will succeed.
- It is enough that the applicants show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending trial.
- The strength of the prima facie case required depends on the nature of the rights asserted by the applicant and the practical consequences likely to flow from the order the applicant seeks.
- [28]Now, s 58 of the HRA provides the following:
- [29]Section 58(1) of the HRA provides:
- “(1)It is unlawful for a public entity—
- to act or make a decision in a way that is not compatible with human rights; or
- in making a decision, to fail to give proper consideration to a human right relevant to the decision.
(2) Subsection (1) does not apply to a public entity if the entity could not reasonably have acted differently or made a different decision because of a statutory provision, a law of the Commonwealth or another State or otherwise under law.
Example—
A public entity is acting to give effect to a statutory provision that is not compatible with human rights.
(3) Also, subsection (1) does not apply to a body established for a religious purpose if the act or decision is done or made in accordance with the doctrine of the religion concerned and is necessary to avoid offending the religious sensitivities of the people of the religion.
(4) This section does not apply to an act or decision of a private nature.
(5) For subsection (1) (b), giving proper consideration to a human right in making a decision includes, but is not limited to—
(a) identifying the human rights that may be affected by the decision; and
(b) considering whether the decision would be compatible with human rights.
(6) To remove any doubt, it is declared that—
(a) an act or decision of a public entity is not invalid merely because, by doing the act or making the decision, the entity contravenes subsection (1) ; and
(b) a person does not commit an offence against this Act or another Act merely because the person acts or makes a decision in contravention of subsection (1) .
- [30]In Johnston v Carroll [2024] QSC 2; (2024) 328 IR 365, Martin SJA at [75] considered how the HRA operated, and his Honour noted that “[a] decision-maker, to give proper consideration to a relevant human right, must understand in general terms which of the rights of the person affected by the decision may be relevant; how those rights will be interfered with by the decision; must seriously turn his or her mind to the possible impact of the decision on a person’s human rights and the implications, thereof; identify the countervailing interests or obligations; and balance competing private and public interests as part of the exercise of justification”.
- [31]In this particular case, there are a number of human rights relevant as follows:
- Every person has a right to life (s 16 of the HRA).
- A person must not be treated or punished in a cruel inhumane or degrading way (s 17 HRA).
- A person has a right not to have their privacy family home or correspondence unlawfully or arbitrarily interfered with (s 25(a) HRA).
- Families are a fundamental group unit of society and are entitled to be protected by society in the State (s 26(1) HRA).
- [32]I find there is a reasonable argument on the part of the applicants that the relevant decisions infringe these particular rights, and insufficient consideration was given to those rights before the decisions were made.
- [33]I accept the applicants’ submissions that at this stage, there is no evidence that there was a proper consideration of those rights before the making of the relevant decisions.
- [34]Now, it is true, of course, that s 8 of the HRA provides that human rights can be limited, but this is only to the extent demonstrated justifiable under s 13 of the Act.
- [35]Section 13 of the HRA provides:
- “(1)A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
- In deciding whether a limit on a human right is reasonable and justifiable as mentioned in subsection (1), the following factors may be relevant—
- the nature of the human right;
- the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom;
- the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;
- whether there are any less restrictive and reasonably available ways to achieve the purpose;
- the importance of the purpose of the limitation;
- the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;
- the balance between the matters mentioned in paragraphs (e) and (f).”
- [36]This section creates a test to proportionality, which requires the court to evaluate whether the relevant limitation on the human right is reasonable and justified by reference to countervailing considerations. I consider there are real issues raised about whether the actions by council were proportionate.
- [37]There is also an argument available to the applicants that the council breached ss 9 and 19 of the Alteration Law. I am not saying I would find that way, but the argument is available.
- [38]I am satisfied the applicants have sufficiently identified the legal rights which are to be determined at trial.
- [39]In all of the circumstances, I am satisfied on the material a prima facie case exists to render unlawful the decisions made by council.
- [40]It is not suggested in this case that damages would be an adequate remedy, so I do not need to consider that point further.
- [41]I now turn to the balance of convenience. The focus of the court here is the effect of the proposed order.
- [42]In Kellogg Brown & Root Proprietary Limited v Australian Aerospace Limited [2007] VSC 200 at [45], it was said, “…the court should take whichever course appears to carry the lowest risk of injustice if it should turn out to have been ‘wrong,’ in the sense of granting of an injunction to a party who fails to establish his right at trial, or in failing to grant an injunction to a party who succeeds at trial”.
- [43]An undertaking provided to the court not to act is a relevant consideration. In this case, such an undertaking is not offered. The respondent relies upon the letter. But despite what is submitted by counsel, I have formed the view that without an undertaking or order, there is a risk that council will seize and destroy the applicants’ belongings, including shelters.
- [44]The evidence has demonstrated this has happened previously. Without an order, there is no restriction on doing so. There is evidence in the material which, if accepted, tends to show council employees may have acted in a highhanded way. I do not find this, but there is evidence which might base such a finding, and this raises concerns.
- [45]The council, in the letter dated 21 July 2025, alleges it does not intend to enforce the notices but then says it may in the future issue other notices. There is a risk to my mind, the applicants may be removed and lose their homes and there is an argument that any decision breaches the HRA.
- [46]I accept the council has valid concerns as regards public health. On the other hand, I accept there is evidence the community has assisted these homeless people to some extent to alleviate these issues.
- [47]I accept the argument that the proposed action by the council, if continued, would be likely to create significantly greater health concerns for the applicants who are directly affected by the action. If shelter was to be taken away, the applicants would face immediate risk of serious harm from being exposed to the elements.
- [48]As I noted earlier, the council in its submissions has pointed out that the Department of Housing has made some offers. There is some factual dispute as to that and Mr Sheehan gives some examples. So there are triable issues in that regard, and it may be that some of the refusals are reasonable or unreasonable.
- [49]But for the moment, though, the applicants’ shelters are those at Goodfellows Road.
- [50]In the end, based on the circumstances of this case, particularly what has happened previously and the failure of an undertaking to be offered leads to the conclusion that there is a risk of the loss of homes. I agree with the applicants’ submissions that the lower risk of injustice is the maintenance of the status quo and on all of the material, I am satisfied the balance of convenience favours the applicants.
- [51]It is clear the applicants do not have the means to undertake to pay damages, but that is not of great consideration in a public law case.
- [52]In all of the circumstances, despite the able arguments of Mr McLeod KC, I am persuaded the applicants have established that which they need to, to obtain an interlocutory injunction before trial.
Conclusion
- [53]I can understand that some in the community might complain about homeless people living in their midst in tents. On the other hand, the HRA provides protections to all citizens, including the homeless. I consider it would be wrong not to protect vulnerable applicants from the potential loss of their homes in the midst of winter.
Order
- [54]In the circumstances, I am prepared to make an order as per paragraph 1 of the draft order proposed by the applicants.