Ku-Ring-Gai Municipal Council v Bonnici [2002] NSWCA 313

New South Wales Court of Appeal

CITATION : Ku-Ring-Gai Municipal Council v Bonnici [2002] NSWCA 313 FILE NUMBER(S) : CA 41013 of 2001 HEARING DATE(S) : 13/08/02 JUDGMENT DATE : 27 September 2002

Ku-Ring-Gai Municipal Council PARTIES : v Joseph Anthony Bonnici & Sheryll Ann Bonnici JUDGMENT OF : Meagher JA at 1; Sheller JA at 21; Santow JA at 22

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT 13609 of 1985 FILE NUMBER(S) : LOWER COURT Sperling J JUDICIAL OFFICER :

COUNSEL : A: Dr G A Flick QC & A M Pickles R: P Tomasetti SOLICITORS : A: Abbott Tout R: Hunter Lawyers CATCHWORDS : Nuisance - whether the Council could not be held to have committed any nuisance - liberty to apply provisions - appeal dismissed with costs. LEGISLATION CITED : s146(1)(d) New South Wales Roads Act 1993 Romeo v Conservation Commission (NT) (1998) 192 CLR 431 at 487 Brodie v Singleton Shire Council (2001) 180 ALR 145 CASES CITED: Roswell v Prior (1701) 88 ER 1570 at 1573 Maberley v Peabody & Co of London Ltd [1946] 2 All ER 192 at 194 Phillips v Walsh (1990) 20 NSWLR 206 at 209 DECISION : Appeal dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41013 of 2001 SC 13609 of 1985

MEAGHER JA SHELLER JA SANTOW JA

Friday, 27 September 2002 KU-RING-GAI MUNICIPAL COUNCIL v JOSEPH ANTHONY BONNICI & Anor

Facts The respondents, Mr and Mrs Bonnici, were the owners of a block of land situated at the bottom of a slope in a street known as 48 St John's Avenue, Gordon. The respondent husband, an architect, built his house on the land in 1977. Since that time, the respondents suffered severe flooding problems. As a result, the respondents commenced litigation, framed in negligence and nuisance, against the appellant Council in August 1984. They claimed an injunction, an order for abatement works and damages.

The matter, which came on for hearing in September 1985, culminated in certain consent orders being made and amounted to an admission by the Council that they had committed a nuisance. However, compliance with one of the orders required the appellant Council to enter a third party's property and that third party would not consent to the Council's entry onto his land. The matter was subsequently re-listed and Council requested a variation of the September orders.

In November 1986, a second set of orders was made by consent, containing a general injunction forbidding the appellant Council from causing a nuisance, and contained particular orders to set up a new scheme of abatement, together with supplementary orders. On 6 February 1987, these orders were duly entered and liberty to apply was reserved. Despite these orders, deluges of water still invaded the respondents land. The appellant Council proposed that further specified work be performed. On considering the expert evidence, his Honour found neither the work completed nor further work contemplated by the Council, would effectively abate the nuisance. In November 1998, the respondents filed a Notice of Motion seeking further relief. Eventually the matter came before the trial judge against whose judgment this appeal was brought.

On appeal it was submitted that (i) the appellant Council could not be held to have committed any nuisance and (ii) his Honour had no power to embark upon the litigation pursuant to the "Liberty to apply" provision of the February 1987 order.

Held (i) The submission that the Council was at no stage the occupier of St John's Avenue and hence could not have committed the nuisance complained of, must fail. If the Council is not the occupier of the road, it is in the same position: Romeo v Conservation Commission (NT) (1998) 192 CLR 431 at 487 per Hayne J. Nuisance is a continuing tort: Roswell v Prior (1701) 88 ER 1570 at 1573. The appellant Council repeatedly conceded that they were responsible for the actual nuisance. Whatever the theory of occupation was which led the Council to make that concession is of no relevance. They cannot now deny the existence of the nuisance. (ii) At the time each order was made, it was quite clear that neither party, nor the Court, thought that the orders would necessarily terminate the respondents' complaints of flooding. At no stage did anybody imagine that any orders were dispensing of the case on a final basis. The trial judge's findings should not be disturbed: Phillips v Walsh (1990) 20 NSWLR 206 at 209.

Orders Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41013 of 2001 SC 13609 of 1985

MEAGHER JA SHELLER JA SANTOW JA

Friday, 27 September 2002 KU-RING-GAI MUNICIPAL COUNCIL v JOSEPH ANTHONY BONNICI & Anor Judgment 1 MEAGHER JA: This is an appeal by a Council against orders made against it by Sperling J in favour of the respondents Mr & Mrs Bonnici. They were, at all relevant times, the owners of a block of land in a street known as 48 St John's Avenue in the Sydney suburb of Gordon. 2 St John's Avenue runs approximately East-West across the Pacific Highway, which runs approximately North-South. From its junction with Pacific Highway, St John's Avenue slopes markedly to the west, and it is towards the bottom of this slope that No. 48 is situated. Mr Bonnici is an architect who built his house on the land in 1977. 3 It is not in dispute but that ever since Mr Bonnici and his wife have suffered severe flooding problems. The water comes cascading down from the road and its gutters; it also comes from what was called in evidence an "interallottment" drainage line which ran in an easterly-westerly direction, parallel to the Avenue, across Nos. 44 and 46 and emptied into a pit on No 48, near the boundary of Nos 46 and 48; it also comes down a drainage line running at right angles to the Avenue inside No 46 close to its boundary with No 48, and emptying in the same pit. Much evidence was given about the extent of the flooding, and his Honour made findings (all favourable to Mr and Mrs Bonnici) about it. However, since it is not in issue in this appeal, there is no need to describe the appalling conditions with which the Bonnici's had to put up. 4 After hearing all the evidence, his Honour came to certain conclusions, which I shall now set out: "153 I find that the plaintiffs' property has, since 1982, been periodically inundated with stormwater from No. 46, via the natural depression to which I have referred. That stormwater has included a substantial quantity of stormwater from the street. 154 Water incursion from No. 46 has also been from the driveway of that property further to the north. Stormwater arriving via that route has been substantially if not totally from the street. 155 In addition, there has been inundation at the front of No. 48 from the footpath and from the layback of No. 48 itself. Incursion via that route has also been substantially if not totally from the street. 156 Stormwater from the street has been substantially additional to the natural run off of stormwater onto the plaintiffs' land. 157 I find, conformably, that the works carried out in 1987 and 1999 have not prevented the incursion of stormwater from the street onto the plaintiffs' property, which has continued with much the same incidence and to much the same extent as was occurring before 1987." 5 No attack is made by the appellant Council on these findings. 6 Neither was there any attack on his Honour's conclusion, certainly implied if not express, that, because of these findings, the Council was guilty of committing a nuisance. 7 One might, then, wonder what this appeal was about. In order to understand the answer to that simple question, one must delve a little into the procedural skirmishings behind the litigation. 8 The litigation began when in August 1984 the Bonnici's filed a Statement of Claim against the appellant Council framed in negligence and nuisance. They claimed an injunction, an order for abatement works, and damages. The matter came on for hearing before Smart J on 16 September 1985, which culminated in certain consent orders being made on 20 September. They were in the following terms: "1. The Defendant its servants and agents be restrained from permitting, allowing or causing the flow of water from St. Johns Avenue, Gordon and the footpath adjacent thereto onto the Plaintiff's land at No. 48 St. Johns Avenue, Gordon ("the land") so as to create a nuisance. 2. Suspend operation of Order 1 until the 30th June, 1987. 3. The Defendant terminate the flow of interallotment drainage onto the Plaintiff's land which is presently contained in a 300 mm pipe by the connection of a rebuilt pipe to the proposed mainline drainage system as shown on the plans annexed hereto and marked with the letter "A" by 28th February, 1987 and to execute such works in a manner and to a standard which will ensure that the works themselves and the interallotment drainage contained by those works do not in the future cause nuisance to the Plaintiff. 4. The Defendant shall pay the Plaintiffs general and special damages assessed and agreed in the sum of $17,500. 5. The Defendant shall pay the costs of proceedings No. 3609 of 1985 and No. 15340 of 1985 as agreed or taxed to date. 6. The parties have liberty to apply to the Court for further orders on 2 days notice to the other. 7. All orders made on 20th September, 1985 in the proceedings are vacated." 9 These orders, made by consent, obviously amounted to an admission by the Council that they had committed a nuisance. However, these orders did not put an end to the matter. To comply with Order 3 the Council would have had to enter a third party's property, and that third party would not consent to the Council's entry onto his land. The matter was, then, re-listed before Smart J, the Council asking for a variation of the orders of September. It lingered on from time to time, with ad hoc orders being made whenever required. 10 On 27 December 1985, during this extended reappraisal of the litigation, Smart J gave an interim judgment which contained the following observations: "The orders made on 20 September 1985 have not been passed and entered. The Council made it clear that it did not seek to vary order 1 which restrained it from allowing or causing the flow of water from St John's Avenue, including the footpath, onto 48 so as to create a nuisance. It accepted that there was a nuisance and that it had to cease." 11 This drôle de lis continued until 11 November 1986, when a second set of orders was made. They were again made by consent. Again they contained a general injunction forbidding the Council from causing a nuisance, and again a series of particular orders to set up a new scheme of abatement; together with supplementary orders. On 6 February 1987 these orders, unlike the first set of orders, were duly entered. Liberty to apply was reserved. 12 The specific work ordered in the second order was performed by the Council between February and June 1987, but this did not solve the plaintiffs' problems. Deluges of water still invaded the plaintiffs' land, just as before. The Council proposed that further specified work be performed. His Honour found, after considering large amounts of expert evidence, that neither the work done pursuant to the second order, nor the further work contemplated by the Council, were or would be effective to abate the nuisance. In this regard it is worth of note that the Council's expert witnesses did not contradict the plaintiffs' expert witnesses. 13 Meanwhile, the litigation continued, but in a somewhat chaotic style. In November 1998 the plaintiffs filed a Notice of Motion seeking further relief. This seems to have been followed by a series of summonses, each amending its predecessor. In a parallel series of notices of motion the defendant Council sought to strike out all the plaintiffs' original documents. Eventually the matter came before Sperling J against whose judgment this appeal is brought. 14 The appellants in this argument before us, made two principal submissions: first, that the appellant Council could not be held to have committed any nuisance, and secondly that his Honour had no power to embark upon the litigation pursuant to the "Liberty to apply" provisions of the February 1987 order. 15 As to the first submission, the point seems to centre on the provisions of s146(1)(d) of the New South Wales Roads Act 1993, which provides that dedication of land as a public road does not constitute the owner of the road as an occupier of the land. Hence, it was said that at no stage was the Council the occupier of St John's Avenue; and, if it was not the occupier of the road, it could not have committed the nuisance complained of. There are, I think, several answers to this submission. One is that if the Council is not the occupier of the road, it is in the same position: in Romeo v Conservation Commission (NT) (1998) 192 CLR 431 at 487 Hayne J said: "It has now long been held by this Court that the position of an authority, such as the Commission, which has the power to manage, and does manage, land which the public use as of right in broadly analogous to that of an occupier of private land."

This dictum was cited with approval by Gaudron, McHugh and Gummow JJ in Brodie v Singleton Shire Council (2001) 180 ALR 145. After all, it cannot be that neither the Council nor anybody else is in the position of an occupier. 16 Another answer to the submission is that it is made too late. 17 Nuisance is a continuing tort: Roswell v Prior (1701) 88 ER 1570 at 1573, Maberley v Peabody & Co of London Ltd [1946] 2 All ER 192 at 194. The phenomenon of flooding of which the plaintiffs complain has been continuing since at least 1982. In 1985 the Council conceded that it was an actual nuisance and that they were responsible for it. It repeated that concession two years later. This concession was accepted both by the Court and the plaintiffs. Whatever the theory of occupation was which led the Council to make that concession is of no relevance. They cannot now deny the existence of the nuisance. 18 The second is a point of greater difficulty. Both the first and the second orders reserved "Liberty to Apply". At the time each order was made it is quite clear that neither party, nor the Court, thought that the orders would necessarily terminate the plaintiffs' complaints of flooding. Hence the attempts by both parties to revive the litigation after the first set of orders. In my respectful view, Sperling J applied the right principles. He quoted McLelland J in Phillips v Walsh (1990) 20 NSWLR 206 at 209, thus: "The question whether any particular application can properly be made in existing proceedings is a matter to be determined according to general law principles as modified by any relevant statutory provision. One such principle of the general law is that when proceedings have been disposed of by a final order which has been entered, the proceedings are at an end and cannot be revived: see generally Bailey v Marinoff (1971) 125 CLR 529; Gamser v Nominal Defendant (1977) 136 CLR 145; and FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268. There are a number of exceptions and qualifications to this principle but none that has any relevance to the present application, unless it be that subsequent to a final order application may be made for the purpose of dealing with a matter involved in, or arising in the course of, working out that order; for example, by making more specific provision for its implementation or by modifying its operation to take account of some subsequent change of circumstance or by enforcing it. This exception or qualification does not, however, extend to an application made for the purpose of giving substantive relief not sought in the statement of claim or which is substantially different to that given by the final order: see generally Haviland v McLeary (1894) 15 LR (NSW) (Eq) 22; 10 WN (NSW) 146; Poisson & Woods v Robertson & Turvey (1902) 86 LT 302; 50 WR 260; 46 Sol Jo 196; Dowdle v Hillier (1949) 66 WN (NSW) 155; Re Porteous [1949] VLR 383; [1950] ALR 89; Cristel v Cristel [1951] 2 KB 725 and Re Scott (1964) 82 WN (Pt 1) (NSW) 313; [1964-5] NSWR 1636.

He then says: "The statements of principle in these cases and in Ritchie's should be read as applicable to the ordinary case. The context may show that a more liberal meaning was intended in a particular case. As appears from the judgment of McLelland J in Phillips, the usual limitation on the scope of liberty to apply arises from the proceedings "[having] been disposed of by a final order". That, speaking generally, forecloses further proceedings in the same cause"

In the present case, at no stage did anybody imagine that any orders were disposing of the case on a final basis. 19 But, even if that were not so, I do not see that the point would avail the appellant. It would simply mean that the plaintiffs would have to file a new summons with a different plaint number in order to obtain the same inevitable result. 20 In my view, the appeal should be dismissed with costs. 21 SHELLER JA: I agree with Meagher JA. 22 SANTOW JA: I agree with Meagher JA. ******

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