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[2010] WASC 228
Supreme Court of WA
2010-08-30
Martin J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : STALEY -v- PIVOT GROUP PTY LTD [No 6] [2010] WASC 228
HEARD : 21 & 22 SEPTEMBER 2009, 4-7 & 10-13 MAY 2010
Rights of carriageway Easement rights Adjoining rural properties Graded gravel road within 10 m carriageway Private property - Sign on gate Action in private nuisance Declarations sought by plaintiffs as to carriageway width and terms of trespassers warning sign
Berryman v Sonnenschein [2008] NSWSC 213
Carlson v Carpenter (1998) NSW ConvR 55-848
Clifford v Dove [2003] NSWSC 938; (2003) 11 BPR 21,149
Dresdner v Scida [2003] NSWSC 957; (2003) 12 BPR 22,629
Jelbert v Davis [1968] 1 WLR 589
Jones v Pritchard [1908] 1 Ch 630
Lawrence v Griffiths (1987) 47 SASR 455
Mantec Thoroughbreds Pty Ltd v Batur [2009] VSC 351
Markos v O R Autor Pty Ltd [2007] NSWSC 810; (2007) 13 BPR 24,487
Oldham v Lawson [No 1] [1976] VicRp 69; [1976] VR 654
Pettey v Parsons [1914] 2 Ch 653
Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324; (2008) NSW ConvR 56-200
Staley v Pivot Group Pty Ltd [No 2] [2009] WASC 208
Staley v Pivot Group Pty Ltd [No 3] [2009] WASC 355
Timpar Nominees Pty Ltd v Archer [2001] WASCA 430
Trewin v Felton [2007] NSWSC 851; (2007) 13 BPR 24,579
Walsh v Ervin [1952] VicLawRp 47; [1952] VLR 361
Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45; (2007) 233 CLR 528
1 This trial occupied 10 hearing days across September 2009 and May 2010. It concerns an easement dispute between two vineyard owners in Western Australia's south-west. The easement rights at issue relate to a 10 metre wide carriageway strip which has existed since 1997, in a battleaxe block scenario, across approximately 835 m of the defendant's land. The servient land abuts Caves Road, in the south-west locality of Wilyabrup.
2 The plaintiffs have owned lot 547 at Wilyabrup since September 1998. The plaintiffs' neighbour, which owns the adjoining lot 549, is the defendant, a corporation associated with the Laurance family (relevantly Mr Peter Laurance, his wife Mrs Dianne Laurance, and Mrs Laurance's son, Mr Brendon Carr). The defendant purchased lot 549 in May 2001, from another corporation that had acquired it in January 1997, establishing a vineyard called Willow Estate. The plaintiffs next established their own vineyard on lot 547, known as Amarok Estate.
3 Lot 547 is essentially landlocked. In order to access the nearest main road (Caves Road) from lot 547, it is necessary to traverse 835 m east, along the southern boundary of the adjoining lot 549.
4 The certificate of title for lot 549 has recorded, at all times since January 1997 (when the land was separated from its common ownership with the land that became lot 547), an encumbrance by right of carriageway along a 10 m wide strip of land across the southern boundary, enjoyed by the owners, from time to time, of lot 547. There is no dispute about the existence of rights of carriageway held by the owners from time to time of lot 547, as against lot 549. There is, however, a significant dispute over the ambit of those carriageway rights.
5 Historically lot 547 and lot 549 had been rural lands owned within the Guthrie family. It was not until January 1997 that separate certificates of title were issued in respect of each lot. Mr Clifford Guthrie, by an instrument of 6 January 1997, transferred lot 549 to a (purchaser) corporation Rhodes Davies & Associates Pty Ltd (Rhodes Davies) for $1.05 million. However, Mr Guthrie, retained ownership of the land which became lot 547, and which would otherwise have been landlocked - bordering the western boundary of lot 549.
6 The 1997 transfer instrument concerning lot 549 (from Mr Guthrie to Rhodes Davies) contained a reservation of rights of way in favour of lot 547, expressed in the following terms:
Reserving to the Vendor the registered proprietor for the time being of Sussex Location 547 a right of carriageway over that portion of the land above described as is delineated and marked with the letter 'A' on the sketch plan set out hereunder, which right of carriageway shall be an area of land 10 metres in width running along the entire southern boundary of Sussex Location 549.
7 Endorsed upon that 1997 transfer (numbered G368171) is a sketch showing what were to be the adjoining lots 547 and 549. A parallel line and markings indicating a width of 10 m for the right of carriageway, and the circled letter 'A', are observable at the southern boundary of lot 549. I reproduce a copy of the sketch plan which is found within transfer G368171 (exhibit 9, page 20) as an attachment at the end of these reasons.
8 The defendant submits that a 'reservation' of rights of carriageway, as opposed to a 'grant' of such rights (which could have occurred if, say, Mr Guthrie had retained lot 549, but sold off lot 547), is legally significant. The defendant contends that a grant of carriageway rights may carry with it the content of the Ninth Schedule of the Transfer of Land Act 1893 (WA), but that this is not the case for a reservation. A 'reservation' is not harmonious with the terminology employed within the Ninth Schedule and s 65(1) of the Transfer of Land Act, so it is argued. On the defendant's case, a reservation will not result in rights of carriageway being augmented beyond the ambit of the words of reservation that are actually used in the transfer instrument itself.
9 In a practical sense, if the defendant's argument as to a distinction between grant and reservation is accepted, it will deny the plaintiffs the benefit of the expansive terminology that is found within the Ninth Schedule - including the key words 'to go pass and repass at all times hereafter and for all purposes and either with or without animals or vehicles into and out of and from the said land or any part thereof' (emphasis added). I will defer the consideration of this legal argument for the moment.
10 Rhodes Davies held lot 549 until May 2001, at which time it sold the land to the defendant for $4 million. The relevant transfer instrument to the defendant (exhibit 41) acknowledges, as a subsisting encumbrance against lot 549, the (1997) transfer G368171.
11 In September 1998, Mr Clifford Guthrie sold lot 547 to the plaintiffs for $800,000. The relevant transfer to the plaintiffs identified Sussex Location 547 adding 'together with a right of carriageway over the portion of Sussex Location 549 marked "A" on the said map hereon as set out in Transfer G368171' (exhibit 8).
12 Since September 1998, a number of internal transfers concerning portions of lot 547 have occurred, as between Staley family members, or to an associated Staley family corporation. These internal movements in the ownership of lot 547 were driven by considerations relating to superannuation holdings - so they are accepted as irrelevant for present purposes. From July 2003, the plaintiffs personally have held all of lot 547 as joint tenants (exhibit 7).
13 After its 1997 acquisition of lot 549, Rhodes Davies took steps to plant vines to establish a vineyard, which became known as Willow Estate. When the defendant acquired lot 549 from Rhodes Davies in 2001, the vineyard was well established. Some (red roofed) residential dwellings had also been built on lot 549.
14 After the September 1998 acquisition of lot 547, the plaintiffs then began to establish their own vineyard on lot 547. They built a residence on lot 547, which they used from time to time, when they visited from Bunbury. The plaintiffs' daughter, Megan, and their son-in-law, Mr Shane Oreo, have resided on lot 547 since 1998. Mr Oreo has been manager of the plaintiffs' property and the Amarok Estate vineyard over this period.
15 Peter and Dianne Laurance are based in Perth, but they routinely visit lot 549 and stay from time to time in one of the residential dwellings built on the property. Mrs Laurance's son, Brendon Carr, lives with his family in another of the dwellings on lot 549. He has resided there since 2001 with his wife and three children. Mr Carr returned to Western Australia in 2001 at his family's invitation, to take a position as a vineyard manager. He has subsequently become manager of the business, Laurance Wines, which now operates a cellar door operation from lot 1130, Wilyabrup (a property acquired in 2003). Lot 1130 abuts (on its eastern side) Caves Road. Lot 1130 also abuts the southern boundaries of both lots 549 and 547. In these proceedings, it was shown that a fence dividing lot 549 and lot 1130 is not precisely aligned upon the true boundary of lot 1130. Surveys in August 2009 commissioned for this trial by both the plaintiffs (exhibit 5) and the defendant (exhibit 13), show that the southern boundary fence on lot 549 is actually erected about a metre or so south (ie inside lot 1130) of the true boundary between lot 1130 and lot 549. Lot 1130 was acquired by interests associated with the Laurance family. A cellar door operation, offering Laurance Wines for sale to the general public, commenced from lot 1130 in late September 2006.
16 A series of six aerial photographs (exhibits 24 through 29, inclusive) were taken over the period between October 1996 and November 2004. They helpfully capture an evolving series of developments on both lots 547 and 549 across a time span of just over 8 years. Exhibit 24, taken in October 1996, captures the essentially rural character of the land the subject of lots 549 and 547 at that time, in proximity to Caves Road to the east. The properties appear to be pasture. The southern boundary of both lots 549 and 547 is ascertainable by reference to a dirt road which is seen to extend west from Caves Road, winding through a substantial area of established native bushland and trees, spanning roughly 200 m, then continuing westward. The aerial photograph captures the location of the land the subject of lots 547 and 549 when all that land had been held in the ownership of Mr Clifford Guthrie.
17 Exhibit 25 is an aerial photograph taken in December 1998. It shows the establishment of three red-roofed residences in the north-western corner of lot 549, as well as two dams and rows of vines - running in an east-west direction across a large portion of lot 549. At the time, the Willow Estate vineyard was being developed by Rhodes Davies on lot 549. In contrast, lot 547, to the immediate west, looks to be essentially unaltered pasture.
18 Exhibit 27 is an aerial photograph taken in April 2001, shortly before the defendant acquired lot 549 from Rhodes Davies, and some 2 1/2 years after the plaintiffs acquired lot 547. An establishment of rows of vines over lot 547 is now apparent, as is the presence of sheds and a residence towards the north-western corner of lot 547. Aside from the established area of trees and bushland at the southern area between lot 549 and lot 1130, there is also an observable line of new trees now manifest along the southern and western boundaries of lot 549, essentially as wind breaks along those boundaries.
19 Exhibit 28 (an aerial photograph of March 2003) and exhibit 29 (an aerial photograph of November 2004) both show rows of vines planted across substantial portions of both lots 547 and 549.
20 The plaintiffs and defendant are essentially in dispute over two major issues associated with the plaintiffs' exercise of their rights of carriageway across the southern boundary of lot 549. The first major issue concerns the dimensions of a gravel track which the plaintiffs assert they caused to be laid down in the right of way area in around 1998, being relatively soon after they acquired lot 547 from Mr Guthrie. The gravel track is essentially a subset area within the 10 m wide carriageway and traverses roughly east to west from Caves Road over 835 m, on the southern boundary of lot 549. The plaintiffs contend that there has been an intentional 'narrowing' of this gravel track by the defendant since 2001. They now seek to widen this track at places, particularly towards the western end of the carriageway, over (approximately) a 230 m section of the carriageway - as it approaches the south-eastern corner gate at the entry point to the plaintiffs' lot 547.
21 The second major issue concerns the terms of a warning sign against trespassers, which the defendant erected on the gate on lot 549 at the south-east corner entrance to the carriageway, where the carriageway abuts Caves Road. No complaint is now pressed against the existence or utilisation of a gate or gates at this entrance point. The current gates are set on posts, on a bi-fold hinging arrangement - with the two swinging sections of the gate closing at a middle point, where the sections are latched (but not locked) by a chain.
22 It was the plaintiffs who in fact first erected a gate at the Caves Road entrance in the period when Rhodes Davies owned lot 549 (i.e. between 1997 and May 2001). The original gate was subsequently removed and replaced, in circumstances I will explain later.
23 In about 2005, the defendant caused a sign to be placed on one section of the new gate displaying the words: 'Private property. Trespassers will be prosecuted'. The plaintiffs object to the terms of this sign and seek to have the defendant remove and replace the existing sign with a new sign, in more welcoming terms. The proposed replacement sign's precise formulation and dimensions are embodied within exhibit 2 (augmented by a last minute addition of the word 'straight', after reference to 1 km).
24 The new sign (on the gate facing Caves Road) which the plaintiffs advocate to replace the existing sign, would read:
VISITORS
TO
AMAROK ESTATE
1km STRAIGHT AHEAD
WELCOME
20 KPH ZONE
PLEASE SHUT THE GATE
OTHERWISE TRESPASSERS
PLEASE KEEP OUT
25 At trial, the defendant made it plain, particularly through the evidence of Mrs Laurance, that it is implacably opposed to any removal, or alteration to, the terms of the existing sign.
26 According to the defendant, the terms of the current sign bear upon the safety, security and privacy of lot 549. The current sign is both necessary and effective, it is submitted, to keep trespassers away from the defendant's private property - which includes the busy vineyard operation conducted from lot 549. The defendant also opposes the terms of the plaintiffs' proposed replacement sign. The first basis of opposition is that the sign is unnecessary, since the location of Amarok Estate on lot 547 is already well signposted on the eastern side of Caves Road by a blue road verge sign, that is well visible to passersby (seen in exhibits 39 and 45). The defendant further submits that any relaxation in the strength of the visual warning conveyed to potential trespassers (manifested under the terms of the current sign on the gate) would likely disrupt the current status quo, producing a less secure environment on lot 549. This is particularly the case regarding those who enter the carriageway to approach lot 547, but are tempted to stray north onto lot 549 - beyond the bounds of the unfenced 10 m carriageway area (unfenced along its northern side) and from there towards the working vineyard or the alluring residential precincts on lot 549 (rather than proceeding west, traversing the southern boundary of lot 549 to reach lot 547 or, on an exit scenario from lot 547, proceeding east along the carriageway towards Caves Road).
27 I now propose to explain, in some further detail, the history of this litigation between these parties. This is necessary, since the precise grievances and relief which are finally articulated by the plaintiffs at the end of the trial have evolved very considerably across time, as this litigation has been conducted, including during the trial.
28 When the plaintiffs issued their writ of summons in this action on 24 April 2009, it carried a full statement of claim comprising 19 paragraphs (Rules of the Supreme Court 1971 (WA) (RSC) O 6 r 3). The first pleading asserted the plaintiffs' carriageway rights, as owners of (dominant) lot 547 against lot 549 (as servient land), and complained about the gate across the carriageway entrance at Caves Road. Also asserted was the entitlement to the full 10 m width of the 835 m carriageway across lot 549.
29 The plaintiffs pleaded that the defendant had planted or allowed trees to grow along the carriageway which had encroached against the 10 m width of the carriageway. Injunctive relief was sought against the defendant on the basis of a cause of action in private nuisance, seeking the forced removal (by mandatory injunction) of both the gate, as well as all encroaching trees which intruded against the full 10 m width of the carriageway over 835 m across the southern boundary of lot 549.
30 In May 2009, the defendant filed its defence and counterclaim. It refuted the claims of nuisance, contending, in effect, that reasonable usage of the carriageway across lot 549 by the plaintiffs (as dominant tenement holder) did not entitle the plaintiffs to use of the full 10 m width of the carriageway area.
31 By a counterclaim, the defendant went even further to pursue, under s 129C of the Transfer of Land Act, orders from the court formally reducing the 10 m width of the carriageway to a narrower width - by reference to the lesser width dimensions of an existing (as at 2009) gravel track within the 10 m carriageway area.
32 In circumstances which I explained in my reasons for judgment Staley v Pivot Group Pty Ltd [No 2] [2009] WASC 208, delivered in May 2009, I granted an interlocutory injunction upon the defendant's application after a grading incident on lot 549 (transpiring within days of the defendant filing its defence and counterclaim). That incident physically impacted on an area of cover crop (rye grass) sown by the defendant at the southern border area - and around the last row of the defendant's vines, which abutted the commencement of the 10 m carriageway area.
33 By September 2009, when an urgent trial of the action commenced, the plaintiffs' case had altered. It was no longer asserting rights over the full extent of the 10 m width of the carriageway area. Instead, it was seeking to establish a narrower bitumen road within and along the 835 m carriageway area. This more elaborate road was sought to be constructed in circumstances where the plaintiffs were seeking to establish a cellar door operation from lot 547, for the Amarok Estate vineyard.
34 As part of obtaining a required development approval from the Shire of Busselton for a cellar door operation on lot 547, in September 2009 the plaintiffs were seeking, in effect, to upgrade the existing gravel track area within the carriageway, in a manner compliant with perceived requirements of the Shire for the approval of the cellar door operation.
35 However, on day 2 of the trial (22 September 2009) circumstances were explained by senior counsel for the plaintiffs which then rendered it impossible to proceed further with the trial at that time, due to a late change in the plaintiffs' case, as then formulated. I have explained the circumstances in which the trial needed to be interrupted in my reasons in Staley v Pivot Group Pty Ltd [No 3] [2009] WASC 355, in the context of the defendant's application seeking costs thrown away as a result, on an indemnity basis.
36 Between September 2009 and a recommencement of the trial on 4 May 2010, the plaintiffs formulated a series of amendments to their statement of claim under various minutes circulated to the defendant's solicitors, as well as to the court. At one time, the plaintiffs sought injunctive relief to compel the defendant to consent to proposed road works on the carriageway by way of further gravelling, so as to facilitate a requirement of the Shire of Busselton for approval by an amended development application towards a cellar door operation from lot 547. For various reasons, including firm objections raised by the defendant, these minutes of amendment were not perfected.
37 In mid-April 2010, with a May 2010 resumption of the trial then imminent, the plaintiffs finally obtained leave to amend their statement of claim, but now essentially by way of wholesale excision, thereby limiting the plaintiffs' case to grievances about alleged narrowing of the gravel track within the carriageway since 2001 (now referred to as the gravel road) and also against the terms of the existing warning sign to trespassers on the gate at the Caves Road entrance to the carriageway.
38 The plaintiffs by their prayer for relief in the April 2010 statement of claim sought both declaratory and injunctive relief, in these terms:
(a) to maintain the Gravel Road on the ROW at a width of four metres, plus half metre shoulders on each side;
(b) to place and maintain the first Amarok sign on the Gate.
(a) in any way preventing the Plaintiffs from maintaining the Gravel Road on the ROW at a width of four metres, plus half metre shoulders on each side;
(b) continuing to maintain the placement of the Sign on the Gate and from in any way preventing the Plaintiffs putting and maintaining the first Amarok sign on the Gate.
39 Senior counsel for the plaintiffs reopened the case for the plaintiffs at the recommencement of the trial on 4 May 2010 on the basis that the plaintiffs were seeking only to 'maintain' the gravel road within the carriageway - at the dimensions of the road as it had been originally constructed by the plaintiffs' contractor in December 1998. It was contended that the width of the road had, since then, narrowed in parts, particularly after the defendant had taken ownership of lot 549, from 2001.
40 The plaintiffs now only sought, so it was put, to reinstate (as maintenance) what was contended to be the original width of the gravel road in the carriageway at a uniform width of 5 m (on the basis of 0.5 m wide gravel shoulders flanking either edge of a 4 m wide gravel road). The plaintiffs characterised this road reinstatement objective as an exercise of the plaintiffs' right to 'maintain' the carriageway - as dominant owner, under a reasonable exercise of the carriageway rights enjoyed over lot 549. This reasonable maintenance contention finds its expression under pars 14 and 15 of the plaintiffs' April 2010 statement of claim. The paragraphs of the pleading are in these terms:
41 Under directions which I made at an earlier CMC List hearing, the plaintiffs were required to provide further and better particulars as to the precise nature of the 'maintenance' activities they actually now proposed, under the umbrella of par 14 of the statement of claim. The particulars subsequently provided by the plaintiff refer to the taking of all reasonable steps, from time to time, to enable the gravel road to be safely and effectively used by motor vehicles, cycles and pedestrians, through proposed conduct by the plaintiffs which included:
(a) Repairing the Gravel Road to fix potholes, drains and damaged areas;
(b) Grading the Gravel Road;
(c) Removing branches of trees or vegetation which fall, overhang or intrude upon the Gravel Road in a manner such as to impede the safe and effective use of the Gravel Road by motor vehicles, cycles and pedestrians; and
(d) Bringing materials, equipment and vehicles on to the ROW, and people being on the ROW, to enable the matters referred to in (a), (b) and (c) to occur.
42 The general nature of these now identified maintenance activities as explained by the plaintiffs would, on their face, ordinarily present as reasonable conduct by a holder of carriageway rights.
43 However, the defendant submitted that the proposed maintenance activities were, in fact, wholly unnecessary, since the defendant had previously pruned the trees abutting the carriageway and graded the carriageway regularly since 2001, and would continue to perform these activities in the future, from lot 549. Thus the defendant contended that there was no practical need, and therefore no justification for the plaintiffs to carry out any of its foreshadowed activities as particularised - as acts of reasonable maintenance towards the carriageway and the gravel road found therein. It would not then be a reasonable exercise of carriageway rights by the plaintiffs to replicate unnecessary work (pars 14.6 and 14.7 of the defendant's defence), so it was submitted.
44 When the trial recommenced in 2010, it became apparent that the major 'on the ground' controversy between the parties over the gravel road was not so much about the plaintiffs replicating the defendant's maintenance. Rather, it centred on the plaintiffs' foreshadowed grading work - by widening the gravel road out to a uniform width of 5 m (ie comprising a 4 m road with 0.5 m shoulders on each side) along its 835 m length.
45 From an examination of two surveys of the carriageway on lot 549 that were commissioned by the plaintiffs and the defendant in August 2009 (exhibits 5 and 13, respectively), over the entire 835 m of the southern boundary of lot 549, it is apparent that at points, the width of the gravel road is less than 5 m.
46 The significant factual issue which then correlatively emerged at the recommencement of the trial was whether the gravel road situate in the carriageway had originally been laid down in 1998 by the plaintiffs' contractor along the entire 835 m length at a uniform width of 5 m. The plaintiffs, through senior counsel, also explained that the proposed reinstatement to the original width of the gravel road at the uniform 5 m width was now unrelated to any cellar door proposal by the plaintiffs for Amarok Estate on lot 547. A former 2009 cellar door proposal was, I was told, no longer pursued. This was later confirmed in the evidence of Mr Shane Oreo in cross-examination (ts 690 - 691).
47 The defendant did not, as an issue of fact, accept that gravel road had ever been uniformly laid down at a 5 m width in 1998 by the plaintiffs (before the defendant acquired lot 549 in May 2001). It opposed any extension of the presently existing (as ascertained in the August 2009 surveys) widths of the gravel road, on the basis, once again, that widening was completely unnecessary.
48 At the trial's recommencement, the defendant played a DVD recording (exhibit 10) of a demonstration in August 2009, showing a large truck with a fully-laden low loader entering the carriageway from Caves Road, then traversing west along the entire length of the gravel track to lot 547, completing a U-turn and then traversing the track back to Caves Road. The low loader carries a Gregoire harvester of a type used, I was informed, at both the lot 547 and lot 549 vineyards to seasonally harvest grapes along the rows of vines on each vineyard. The DVD therefore showed the widest, highest and heaviest configuration of vehicle likely to use the gravel track within the carriageway. The truck, low loader and harvester were filmed traversing the entire 835 m of carriageway along the southern boundary of lot 547, starting at and then returning to the entrance at Caves Road, without any apparent difficulties in so proceeding or manoeuvring.
49 The defendant contends that the DVD convincingly shows that the status quo gravel track width arrangements (August 2009) in the carriageway are perfectly satisfactory to meet the plaintiffs' maximal needs. Consequently, the defendant says that any further widening of the existing gravel road, at either edge, would be an unnecessary and unreasonable intrusion against its land.
50 The defendant contends that the carriageway rights enjoyed by the owners of lot 547 as against lot 549, do not extend beyond reasonable usage. Therefore, further extensions in the width of the gravel track would, it is said, impact adversely against the effectiveness of current windbreak tree cover, along the southern side of the carriageway. On the northern side, widening at the edge of the track would impact against ryegrass groundcover, legitimately sown in order to provide aeration and nourishment to the southernmost row of vines on lot 549. The surveys (exhibits 5 and 13) show the southernmost rows of vines, at various places, are planted precisely along a northernmost borderline of a measured 10 m wide carriageway along lot 549, at a number of places.
51 The declaratory and injunctive relief sought by the plaintiffs at the recommencement of trial in respect of the gravel road was explained as essentially pursued on the basis of proposed reinstatement of uniform width dimensions (5 m) to the gravel road that had been laid down by the plaintiffs' contractor, in 1998.
52 I will defer for the present mentioning some further facts which surround the residual signage issue over the warning to trespassers displayed on the gate at the Caves Road entrance to the carriageway.
53 The plaintiffs called two witnesses at the trial. The first, Mr John Robert Staley, is the first named plaintiff, whose witness statement became exhibit 21. Mr Staley resides in Bunbury with his wife, but they visit lot 547 frequently to see their daughter Megan, their son-in-law Mr Shane Oreo and their grandchildren.
54 In augmentation of the evidence-in-chief provided under his witness statement, Mr Staley orally mentioned (ts 496 - 499) that large vehicles travel up and down the carriageway from Caves Road to lot 547. Such vehicles include Gregoire harvesters carried on low loaders, large bins of harvested grapes (which are delivered empty and then removed filled, on semi-trailers), as well as other semi-trailers and trucks which convey pallets of bottled wine produced by the Amarok vineyard.
55 At par 35 of his witness statement (exhibit 21), Mr Staley said that these heavy vehicles do not generally experience difficulty in accessing lot 547 via the carriageway, if the trucks are driven slowly enough. In supplementation of that observation, Mr Staley was asked in-chief, at ts 496, to express his view about such traversal towards the western end of the carriageway (that is, approaching lot 547, and westward of a middle wooded section, beyond a turnoff to the north heading towards a location on lot 549 known as the Barn, and about 230 m (approximately) before reaching the entrance gate to enter lot 547). Mr Staley referred to the trees at that western section of the carriageway as having been heavily pruned. He said:
Even with the pruning of the trees, which are probably at their maximum - this year was the hardest pruning that Pivot, Mr Laurance's employees did - was the hardest they had done in all the time they had owned the property (ts 498).
Under exhibit 21, at par 28, Mr Staley had earlier said, regarding the same bordering trees on the southern side of the carriageway:
Pivot has only seriously cut back (as opposed to minor pruning) some trees encroaching onto our gravel road since this action was commenced. Even then, there are still countless trees encroaching and impeding our access along the gravel road in the ROW.
56 In his oral evidence, Mr Staley told the court that his real concerns now were in respect of the other (northern) side of the gravel road, at the western end of the carriageway. This was not a tree foliage intrusion issue. Rather it was a groundcover incursion issue, around the southernmost row of the defendant's vines. Mr Staley said:
Those trees this year have been pruned right back which has enabled us to utilise the road. However, on the northern side ... where the ploughing has taken place, that has come across further this year and the previous year than it had on other years (ts 496).
57 Mr Staley also expressed his potential concern over the bogging of heavier vehicles, although to his knowledge, no bogging incidents had occurred (ts 497 - 498).
58 Senior counsel for the plaintiffs asked Mr Staley this further question:
What is it that you would - with the permission of the court, what would you like to have occur and why?---Your Honour, I would like to see the row [sic: road] widened back to a four-metre road with half-metre shoulders on the southern side as we're looking east where the trees are - - -
KENNETH MARTIN J: On the tree side, yes?---That area really cannot really have much more attention or much more work done on it to be able to squeeze any more width out of the road because we're hard up against the tree line.
All right. Then on the northern side?---On the northern side, if we were to go back to approximately - I think it works out at approximately 800 millimetres to a metre from where the gravel is now, and that was made into gravel with the gravel and the shoulder forming that metre, that would give us the four-metre road, row. A better way of explaining it probably is in the reverse. If you went on the northern survey line and came in a metre towards the south, which shows on one of the photographs, that is the area that I would think if the road stopped at - if the gravel surface stopped at that point there would be enough width there for vehicles of any size to come in without any fear of them getting bogged or leaving the gravel surface (ts 498).
59 On the basis of Mr Staley's trial evidence, viewed particularly by reference to a photograph numbered SGO 31 found within exhibit 36 (taken by Mr Oreo around August 2009), the plaintiffs' position now seemed to be:
(a) to express no grievance over the contemporary extent of the defendant's work in pruning back foliage on the trees which constituted a windbreak along the southern boundary of the carriageway;
(b) to retreat somewhat from seeking that a minimum 5 m uniform width gravel road be reinstated along the whole 835 m of the carriageway, by now confining the plaintiffs' main grievance to the northern edge in a 230 m area in the western section of the carriageway, and closest to lot 547 (observable in exhibit 13, the defendant's survey, in the lower two (of four) sections, commencing westward of the northern turnoff to the Barn, and depicted between a measurement of the gravel road width at 4.26 m, then extending westward to the end of the survey line, on the eastern boundary of lot 547); and
(c) to propose a gravel road width reinstatement in the western section of the carriageway by the construction of a 0.5 m shoulder along the northern edge of the gravel road (observable in SGO 31) to a point 1 m south, when measured from the east/west line of the southernmost row of vines (the southernmost row of vines being identified in the respective surveys, exhibit 13 and in exhibit 5 - particularly in exhibit 5 (sheet three of three)) - essentially right on the northern border line of the carriageway area, aligned in an east/west direction. (The vines along the 230 m western end area leading up to the entrance to lot 547 were sometimes also referred to as the sauvignon blanc vines.)
60 The plaintiffs' other witness at the trial, Mr Shane Oreo, commenced his evidence on Friday 7 May 2010. His evidence-in-chief took the form of an amended witness statement (exhibit 35) which, broadly speaking, confirmed that the plaintiffs' essential gravel road width concerns were focused at the western 230 m section of the carriageway. Under exhibit 35, Mr Oreo said:
61 By reference to the photograph SGO 31, Mr Oreo then observed, at par 39:
62 At the end of Friday 7 May 2010 (day 6 of the trial) Mr Oreo remained under cross-examination, due to recommence the following Monday. However, a seemingly minor issue of detail had arisen that afternoon over the existence and dimensions of a culvert - said to be almost completely buried underneath the gravel road, in this western section of the carriageway. By reference to the defendant's survey exhibit 13, this possible culvert was identified as lying (north to south) between the width measurements of 3.72 m, in the third level of the survey, and the width measurement of 3.56 m, found at the commencement of the fourth level.
63 With the defendant's concurrence, I granted leave for Mr Oreo, albeit still under cross-examination, to re-inspect this possible culvert in the area over the intervening weekend, then to speak to his legal advisers on that limited issue, with a view to augmenting or clarifying the culvert evidence on Monday. Hence, it was envisaged that Mr Oreo would return to Wilyabrup over the weekend, inspect (on lot 549) the position and features of any culvert he found, then supplement his evidence-in-chief on this relatively narrow culvert point, as may be required, before his cross-examination continued on Monday morning.
64 A series of photographs were taken by Mr Oreo over the intervening weekend. They became exhibit 38, incorporating photographs SGO 33 to SGO 49, inclusive. Photograph SGO 38 captures a contractor of the defendant using a Connor Shea 8000 series seeder towed by a tractor. The contractor observed in SGO 38 is seen to be sowing a groundcover crop at the western area end of the carriageway over that weekend.
65 On 7 May 2010, Mr Oreo produced a supplementary statement, which became exhibit 37, referring to and explaining (without objection) the series of exhibit 38 photographs.
66 At the conclusion of his supplementary statement, Mr Oreo now sought to modify an earlier statement in par 39 in his first witness statement (as I have referred to above). He now said under par 6:
Having taken the photos and made the measurements referred to in the previous paragraph it is now apparent to me that the gravel road can be reinstated/re-laid with the northern edge of the northern shoulder being 1.5 metres from the boundary peg along the length of the area where Pivot has its Sauvignon Blanc vines, rather than 1 m from that peg - along the length of Pivot's Sauvignon Blanc vines, for the entire length of that part of the northern boundary of the easement.
67 The plaintiffs' position, now expressed through Mr Oreo, as to the desired increased width in the gravel road, had therefore altered by half a metre, as from Monday 10 May 2010 (day 7 of the trial).
68 The plaintiffs, as I understood the case, now sought to widen the gravel road at its edge, northward by an addition of a road shoulder area - in a manner that would not widen the gravel road any further northwards in this western area than beyond a 1.5 m width mark, when measured to the south, commencing the measurement from the southwest rows of vines, as identified in photograph SGO 31 of exhibit 36 (but see also photograph SGO 48, taken over the weekend by Mr Oreo, and part of exhibit 38).
69 However, Mr Oreo, by this supplementary witness statement of 7 May 2010, now proposed some further works. These were explained, in reference to the culvert issue, as follows:
Along the western part of the ROW, next to the Sauvignon Blanc vines if shoulder on the northern side were re-instated in the area which has been ploughed, it would be desirable for the water coming off the new shoulder to be directed away from the vines. In order to do this I would propose that at the time of cutting in the new shoulder that two new culverts be dug in across and under the road, with the culvert pipe sloping downwards from north to south, rather than from south to north as occurs now in the existing culvert. In order to establish the most effective places adjacent to the Sauvignon Blanc vines for the new culverts to be placed, it would be necessary for a contractor to use either a theodolite or a laser level to identify the lowest points where the water would run to. Use of such equipment is routine for contractors experienced in making gravel roads. I myself have used both of these types of equipment at Amarok to determine soil and road levels. The length of the new culvert pipes that I propose would be 5 metres, with each end cut into the shoulders of the road.
70 The plaintiffs' case had been run, at least from September 2009, on the basis that no existing trees - and particularly in a native bushland area closer to the eastern end of the carriageway (referred to by the defendant as 'the Historic Wood') - would be endangered or removed as a part of any proposed gravel road widening work by the plaintiffs. Both surveys uncontroversially show that at least at two locations along the carriageway (also observable in the exhibit 10 DVD footage, showing traversal of the carriageway by truck and low loader fully laden with a Gregoire harvester) what are narrowing area 'pinch points', measured between trees on both sides of the gravel road.
71 The Historic Wood area commences (by reference to the survey exhibit 13) beyond a fork off to the north (leading towards a workshed area on lot 549), where the gravel road's width is measured as 5.21 m. The Historic Wood then extends west until (in the third level of the survey in exhibit 13) reaching another off road to the north. Here the gravel road's width is measured as 4.98 m (leading to the location on lot 549 known as the Barn). Within this section are found the narrower 'pinch points' in the gravel road, formed between large trees on either side of the road. In the second level of exhibit 13, a pinch point within the Historic Wood lies between the 3.86 m and 4.36 m markings, observable in photograph 17 of exhibit 1 (looking east). A second pinch point in the Historic Wood is seen in the third level of the survey at a measured 3.72 m mark, just before the turnoff to the Barn, shown in photograph 18 of exhibit 1 (and looking west towards lot 547 along the carriageway).
72 The trees at the two pinch points are obviously very well-established large trees. It is clear that these trees have existed in situ long before the plaintiffs took ownership of lot 547. The gravel road which the plaintiffs caused to be put down across and within the carriageway in 1998, at least at those two narrow pinch points, could not have been of a uniform dimension of 5 m across an entire 835 m length (on a basis of there being 0.5 m shoulders constructed on each side of a uniform 4 m width gravel road). What is more likely, and what I find, is that when the plaintiffs' road-making contractor (Mr Penfold) put down the gravel road in the carriageway in 1998, and particularly within the Historic Wood area, he made a conscious effort to try to preserve and retain as many of the established trees on the southern boundary of lot 549 as possible. As a result, the gravel road he constructed in 1998 weaved and narrowed in places, to accommodate the existing large trees.
73 I cannot accept, therefore, the plaintiffs' core premise, upon which the trial recommenced in May 2010, that the original gravel road found within the carriageway had originally been constructed uniformly at minimum width of 5 m across the whole 835 m of the carriageway along the southern boundary of lot 549. The existence of the pinch points shows to the contrary.
74 By the time Mr Oreo's supplementary witness statement, exhibit 37, was tendered on Monday 10 May, I did not understand the plaintiffs to be seriously pressing the uniform 5 m width contention for the whole 835 m length of the carriageway area. Rather, I understood the plaintiffs to be contracting in their focus to pursue a degree of widening for only a component area in the carriageway, namely in the 230 m section, at the western end, as referred to by Mr Staley.
75 Moreover, as from Monday 10 May 2010 (day 7 of the trial), the road widening proposal had been modified again, following Mr Oreo's weekend reconsideration, to not extend beyond any point closer than a line (extending east to west) 1.5 m south of the northern border line of the 10 m wide carriageway. But the plaintiffs now proposed the extra culvert work, as referred to in par 3 of exhibit 37, and as explained by Mr Oreo.
76 The plaintiffs closed their case at the completion of Mr Oreo's evidence on Monday 10 May (day 7 of the trial). The defendant then commenced its evidence, calling as its witnesses, Mr Carr, Mr Stuart Dickins (Laurance Wines' vineyard manager) and Mr Kale Roberts (Laurance Wines' head gardener).
77 At the conclusion of day 8 of the trial, 11 May 2010, the court was advised by senior counsel for the plaintiffs that the plaintiffs would provide (at my urging) a more precise articulation of the terms of the declaration that was being sought. Senior counsel added:
I indicate right now that we won't be pressing for any form of injunctive relief (ts 837).
78 As from the end of day 8 of the trial then, the question of (final) injunctive relief being sought by the plaintiffs was abandoned.
79 The defendant closed its case on day 9 of the trial, at the conclusion of its last witness' evidence (Mrs Laurance), at just before lunch on Wednesday, 12 May 2010. The trial was, at that point, adjourned to hear the closing submissions from both counsel the following day.
80 After court had risen on 12 May 2010, I received at chambers a copy of the plaintiffs' minute of proposed declarations [which carries on its face the date 11 May 2010, but which senior counsel for the plaintiffs subsequently explained was erroneously dated and should have carried the date 12 May 2010].
81 The content of that minute, published at the end of day 9 of the trial, provided more insight towards what now was the exclusive declaratory relief case pursued by the plaintiffs.
82 The minute of the plaintiffs' proposed declarations, as received, was in these terms:
(a) repairing the Gravel Road, including shoulders of the Gravel Road, to fix potholes, drains, culverts and damaged areas;
(b) grading the Gravel Road;
(c) removing branches of trees or vegetation which overhang or intrude upon the Gravel Road in a manner such as to impede the safe and effective use of the Gravel Road by motor vehicles, cycles and pedestrians and vertically to a height no greater than 6.5 metres [amended further by senior counsel in closing argument to 5.7 metres], and to remove dead or fallen branches of trees or vegetation on the Gravel Road; and by
(d) bringing materials, equipment and vehicles onto the Right of Way, and by people being on the Right of Way, to enable the matters referred to in (a), (b) and (c) to occur.
(a) construct a half metre wide gravel shoulder to the north of the Gravel Road in the Western Area, with the shoulder's northern-most edge running east/west being no closer to the northern boundary of the Right of Way in the Western Area than 1.5 metres ('the New Shoulder');
(b) construct one or two culverts across the width, and under, the Gravel Road in the Western Area and across the width, and through, the New Shoulder, with the collar of the culvert or culvert's northern-most edge or edges being no closer to the northern boundary of the Right of Way in the Western Area than 1.5 metres ('the New Culvert/s');
(c) remove branches of trees or vegetation which extend northward in the Western Area closer to the northern boundary of the Right of Way in the Western Area than 6.5 metres and vertically to a height no greater than 6.5 [corrected in closing by senior counsel for the plaintiffs to 5.7] metres ('the Western Area Pruning'); and to
(d) bring materials, equipment and vehicles onto the Right of Way, and for people to be on the Right of Way, to enable the matters referred to in (a), (b) and (c) to occur.
83 The declaratory relief as formulated under the minute was explained by senior counsel for the plaintiffs during his closing submissions on day 10 of the trial. Senior counsel submitted that the plaintiffs did not assert exclusive rights over the carriageway area, and therefore had no objection to an insertion of the phrase 'non-exclusively' after the word 'entitled' in line 4 of par A (for the gravel road as a whole). However, as I understood the submission, senior counsel would not accept a similar clarification for what was proposed under par B (directed at the western section of the carriageway), after the same word 'entitled', and before the phrase in line 8, 'entitled to take reasonable steps to'.
84 Senior counsel confirmed that the formulation of par A of the proposed declarations, addressed the gravel road within the carriageway at all areas (with the western area defined and distinctly dealt with as a paramount concern, under par B and C). Paragraph A of the proposed declaration proceeded on a basis of not seeking to alter to any degree the subsisting width of the gravel road, as shown on the survey, exhibit 13. Essentially then, the status quo in the gravel road's width was accepted by the plaintiffs there. The declaration under A was essentially sought as a preservation of existing width status quo.
85 As regards the western area, however, the proposed declaration under par B(a) expresses the object to construct a 0.5 m wide gravel shoulder on the northern side of the gravel road, in that area. Paragraph B(b) conveys the embodiment of Mr Oreo's plan concerning possible new culvert works, as explained under par 3 of exhibit 37 (Mr Oreo's supplementary statement).
86 The proposed declaration at par B(c) adds something new, insofar as it proposes that the plaintiffs would, in the western area, remove branches of trees or vegetation which extend northward closer to the northern boundary of the carriageway than 6.5 m. If I have understood this pruning proposal correctly, it reflects (contrary to the position expressed by the evidence of Mr Staley, which I earlier set out as regards his acceptance of heavily pruned foliage and vegetation in this western area, at the southern side of the carriageway) the intent of the plaintiffs to themselves now further cut back foliage - beyond even the extent of the recent heavy pruning referred to by Mr Staley (but at all times, as I understood it, still proceeding on the premise that no existing trees would be endangered or removed).
87 The tree pruning work proposal under par B(c), in my assessment, emerged late as an issue, arising largely out of the cross-examination of Mr Roberts, the defendant's head gardener, by reference to two photographs within exhibit 52, a series of four photographs taken in approximately August 2009. One of those photographs, carrying a notation 94, shows the entrance and gate at the western end of the carriageway, abutting lot 547. It depicts what look to be closely pruned back trees along the southern boundary, approaching the gate to enter lot 547 (looking in a westerly direction). Close pruning of foliage is also evident in photograph marked 95, within exhibit 52, as Mr Kale Roberts' evidence confirmed. Again, this photograph gives a view towards the west, perhaps more accurately, to the south-west.
88 A third photograph within exhibit 52 numbered 104, shows more trees located along the southern boundary in the western area, from a view looking back in an easterly (perhaps more north-easterly) direction. The last photograph marked 108 is taken in the same direction, but from a point further east along the carriageway. The photograph gives the impression that the foliage on these trees on the southern boundary has grown outwards and towards a line closer into the gravel road - as one looks at the mid part and background of the photograph. It was put in cross-examination to Mr Roberts that photographs 104 and 108 suggest that the foliage in the western area could still be trimmed back even further (remembering from the exhibit 13 survey that in this western area the width of the gravel road narrows, traversed in an easterly direction, to a minimum width of only 3.56 m, seen at matchline CC). The proposition was not accepted.
89 Formulation of the declaratory relief at pars B(a) and (c) would therefore now seek to extend the width of the gravel road by the plaintiffs' works to be carried out along both sides of the carriageway in the western area, first on the northern side by constructing a 0.5 m gravel shoulder and second on the south, by an even heavier pruning of foliage on some abutting trees. This proposed work is all directed to generate a gravel road of 5 m total width (or, measuring south from the northern boundary of the 10 m carriageway in the western area, allowing a 1.5 m maximum width of rye grass groundcover to extend south from the last row of vines to a commencement of 5 m of gravel road, generating a width of 6.5 m as an outer measured point for foliage and vegetation to extend - measured southwards from a northern border of the carriageway along lot 549 in the western area).
90 As I understood senior counsel for the plaintiffs, during his closing (ts 897), he also raised a prospect of an offer by the plaintiffs to purchase for the defendant a replacement cultivator (plough), so that further groundcover cultivation around the southern side of the last row of vines at the boundary, would produce a reduced (width) ploughed area (less than 1.5 m width measured to the south of the last row of vines in the western area). However, the offer does not appear to have manifested in the terms of the plaintiffs' minute of declaratory relief. At all events, the new plough offer was not responded to affirmatively, as I understood the defendant's position (ts 937). The proposal also does not seem to take account of the (greater) width necessarily generated by the span of the back wheels of the defendant's tractor which pulls both the plough and the seeder.
91 It will be seen from all the above that before trial, then from the start up to the finish of the trial, the plaintiffs' case in the litigation has been something of a 'moving feast', in terms of ever identifying a tangible body of proposed works in the carriageway area - concerning the existing gravel road.
92 The plaintiffs' seemingly perpetual motion has produced, in my view, the unfortunate consequence that what is essentially a neighbourhood boundary dispute of rather small moment between rural landowners could not be resolved through less formal means, rather than by a full-scale 10 day trial in the Supreme Court of Western Australia. My firm impression arising out of the trial is that, with the plaintiffs' case in a state of flux and revision over precisely what roadworks it was proposing - even up to day 10 of the trial, as I have explained above, it is no surprise that the parties were unable to earlier reach a more sensible compromise. At the end, their real dispute, as I apprehended it, essentially distilled down to:
(a) at the 230 m western section in the carriageway, the width of the existing gravel road linking the two vineyard properties to Caves Road, being extended by possibly up to half a metre on each side; and
(b) the terms of a trespassers warning sign that is currently found displayed on the gate at the Caves Road entrance to the carriageway across lot 549.
93 The principles applicable to easements in the nature of private rights of carriageway, and the related law of public nuisance, by reason of an interference with the utilisation of easements rights, were not seriously in controversy as between the parties at the trial. I will therefore set out only a brief summary of some of the more important and relevant principles - derived mostly from the parties' respective written submissions, and which reduce down to the following essentially uncontroversial propositions.
(1) Subject to the rights of the dominant owner, a servient landowner retains full dominion over servient land. The dominant owner holds only such rights as are expressly or by necessary implication found in the terms of the relevant grant or reservation. The servient owner retains all ownership rights, except for the rights inconsistent with a dominant owner's exercise of rights conferred under the terms of the grant or reservation: see Zenere v Leate (1980) 1 BPR 9300, 9304 (McLelland J); Markos v O R Autor Pty Ltd [2007] NSWSC 810; (2007) 13 BPR 24,487 [57] (Austin J).
(2) A grant of a private carriageway, ordinarily speaking, confers only a right to reasonable use by the grantee, in common with others: Clifford v Hoare (1874) LR9CP 362, 371; applied in Timpar Nominees Pty Ltd v Archer [2001] WASCA 430 [41] (Kennedy J); Trewin v Felton [2007] NSWSC 851; (2007) 13 BPR 24,579 [30] (Brereton J), referring to Carlson v Carpenter (1998) NSW ConvR 55-848, 56,639 (Cohen J).
(3) If a servient owner acts inconsistently against a reasonable exercise of a dominant owner's rights, in a manner which causes substantial interference to the dominant owner, such conduct can amount to an actionable nuisance, which a court may restrain by injunction (an injunction being, of course, ultimately a discretionary equitable remedy): Finlayson v Campbell (1997) 8 BPR 15,703, 15,707 (Young J); Clifford v Dove [2003] NSWSC 938; (2003) 11 BPR 21,149 [11] (Bryson J); Trewin v Felton [73] (Brereton J).
(4) In an exercise associated with interpreting the terms of a grant or reservation that is the basis of an easement holder's rights, evidence of mutually known surrounding circumstances, at the time the easement was created, will not be admissible. The only admissible evidence is that necessary to make sense of terms or expressions identified in the property register, such as surveying terms, or abbreviations which appear on a plan: see Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45; (2007) 233 CLR 528 [37], [39], [42], [44] - [45]. To the extent that there is a suggestion in earlier authorities (cf Timpar Nominees [34], [37]) that a broader category of evidence eliciting surrounding circumstances would be admissible, the 2007 High Court decision in Westfield is to the contrary.
(5) The permissible use of an easement right could change with changes in the nature of the use of the dominant tenement, if the terms of the grant are sufficiently broad: Westfield [42]; Timpar [37].
(6) What constitutes reasonable conduct by a dominant owner in relation to a right of carriageway, is essentially determined by reference to the express terms of the grant or reservation: Berryman v Sonnenschein [2008] NSWSC 213 [19] (Einstein J); Butler v Muddle [1995] 6 BPR 13,984, 13,987 (Young J); Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324; (2008) NSW ConvR 56-200 [11] - [16] (Handley AJA).
(7) A term will be implied in a grant or reservation of an easement, to the effect that the dominant owner has such ancillary rights as are reasonably necessary to the effective and reasonable exercise and enjoyment of the rights expressed: Westfield [23]; Zenere v Leate [9305]; Jones v Pritchard [1908] 1 Ch 630, 638 (Parker J).
(8) An ancillary right, deriving from the terms of a grant or a reservation of a right of carriageway, is the right to carry out such work on the servient land as is reasonable necessary to create or to maintain relevant vehicular access to the dominant land: Timpar [43]; Mantec Thoroughbreds Pty Ltd v Batur [2009] VSC 351 [90] - [94] (Habersberger J); Clifford v Dove [30] - [31] (Bryson J).
(9) Notwithstanding that the terms of a grant may be expressed as 'for all purposes', a carriageway must not be used to unreasonably interfere with the lawful use of the servient land by others: Jelbert v Davis [1968] 1 WLR 589, 595; cf Westfield [21] - [22].
(10) In the case of private carriageway rights, an obstruction is not actionable unless it is substantial. There must be a real and substantial interference with the enjoyment of the carriageway: Pettey v Parsons [1914] 2 Ch 653, 662 (Lord Cozens-Hardy MR); applied by Burchett AJ in Dresdner v Scida [2003] NSWSC 957; (2003) 12 BPR 22,629 [21].
(11) In Dresdner, gates were unilaterally installed by a servient owner across each end of a carriageway, in conjunction with signs reading 'Private Property'. On those facts (it being a question to be determined by reference to the circumstances of the individual case) Burchett AJ held that there was a real and substantial interference with the enjoyment of rights of carriageway that was sufficient to sustain an action in private nuisance, together with declaratory and (permanent) injunctive relief. As to the general permissibility of gates, however, compare Trewin v Felton [20], [25], [29].
(12) For the purpose of assessing arguments of private nuisance, the issue of reasonableness, in terms of the degree of interference, is to be assessed using common sense, taking account of all relevant factors in each case, including the ideas of reasonable people, the nature of the location of the land, as well as the character, duration and time of the interference and the effect(s) of the interference: Oldham v Lawson [No 1] [1976] VicRp 69; [1976] VR 654, 655 (Harris J).
(13) Because a complaint of private nuisance raises a cause of action in tort, actual damage must usually be proved. This is subject to an exception, however, where the interference is with an easement, or to a right of access: Walsh v Ervin [1952] VicLawRp 47; [1952] VLR 361, 364, 370 (Sholl J), as explained by Balkin RP The Law of Torts (3rd ed, 2004) at 474 - 475. The exception is grounded conceptually on the proposition that an easement holder has an absolute legal right to the enjoyment of the easement rights, so that any infringement of that right will imply damage, although the extent of the damage may only be nominal.
(14) The usual remedies for private nuisance are in damages, or injunction. In appropriate circumstances declaratory relief may be available: see Mantec Thoroughbreds Pty Ltd [128] - [129], where Habersberger J granted limited declaratory relief.
(15) In the case of rights of carriageway, for any proposed declaration to be of utility, it may need to be (carefully) framed by reference to precise survey documentation, or engineering plans: see Mantec Thoroughbreds Pty Ltd [94], [129], referring to Lawrence v Griffiths (1987) 47 SASR 455 (as explained earlier in Mantec Thoroughbreds Pty Ltd [90], [93]).
94 I will approach my assessment of the plaintiffs' works proposals in respect of the gravel road, particularly in the 230 m section at the western end of the carriageway abutting the rows of sauvignon blanc vines, on the most favourable theoretical basis for the plaintiffs; namely that the scope of the plaintiffs' carriageway rights are augmented under the terms of the Ninth Schedule to the Transfer of Land Act (incorporated by operation of s 65(1)). The defendant of course challenges that position, contending, as I explained earlier, that the words of the Ninth Schedule are not enlivened in respect of rights of carriageway created as the result of a reservation (as opposed to a grant). But I will suppress for the present that legal issue, in order to first assess the matter on a best possible case basis for the plaintiffs, that will draw in the key words of the Ninth Schedule 'for all purposes' (with what that phrase may carry with it, in law).
95 Commencing from that platform, it nevertheless seems to me that the plaintiffs' case, now mainly directed (at the western area) towards establishing or seeking to re-establish a gravel road of a width dimension of not less than 5 m (at 4 m, with a 0.5 m shoulder on each side), suffers from an air of unreality, for a number of reasons.
96 In the first place, the width reinstatement contention seems to me as a matter of principle to focus too heavily on what is a subset area of overall carriageway utilisation rights, rather than upon the nature of the carriageway rights which the plaintiffs enjoy across lot 549, as a whole. The owners of lot 547 were not granted specific rights over any defined gravel road area within the overall 10 m carriageway, under the terms of the 1997 transfer reservation (G 368171). The plaintiffs, I think, have approached the case on the basis that a road they caused to be laid down across lot 549 in 1998 was then to be imbued with a permanent dimension in width, that could never change over time. That inflexible attitude is out of harmony with the reality of an unsealed constructed gravel road subsisting in a rural area as a track which must inevitably, over time, encounter wear and tear through the effects of the seasons and the multiple traversals of various light and heavy vehicles. The trial evidence is that this road has been graded frequently since 1998, both by Mr Oreo (perhaps 30 to 40 times over that period, according to his evidence) as well as by Mr Carr for the defendant, regularly from time to time, in the period between 2001 and 2006. But the gravel road is something of a dynamic area within an overall 10 m wide strip at the southern boundary of lot 549. I find that the track's precise width dimensions must inevitably have fluctuated over time and from year to year, with weather, wear and tear, traffic and seasonal grading.
97 Second, I do not, as I have already explained, accept the plaintiffs' evidentiary premise that the gravel road established in 1998 was laid down with such minutely measured precision at the time, that it was uniformly constructed across its whole 835 m length as 4 m wide with a 0.5 m shoulder on each side. The evidence in that respect arises only on the broad assertions made by Mr Staley and Mr Oreo. That evidence is advanced in a broad brush and imprecise manner, essentially by way of general assertion in 2010, looking back to 1998. There are no measurements, diagrams or photographs tendered showing the gravel road as constructed, even at the western end, to be of such a uniform width, as at 1998. Certainly at areas east of the turn-off to the Barn, my assessment is that the evidence at the trial (particularly the DVD, exhibit 10), positively established that there are locations, as the road winds and narrows between trees through the Historic Wood, where the original road could never have been established at a minimum uniform width of 5 m.
98 Accordingly, I am unable to accept as reliable, what are only bare assertions by Mr Staley and Mr Oreo as to the original uniform width dimension of the gravel road as laid within the carriageway in 1998. There are also dangers I perceive in accepting uncorroborated evidence given in this trial of both Mr Staley and Mr Oreo, which I will address in due course.
99 Third, I do accept that the gravel road as laid in 1998 by the plaintiffs' contractor (Mr Penfold), was originally constructed with sloping shoulders - at both its (northern and southern) edges, which, at construction, were then compacted as part of the overall roadworks. But the shoulder construction work was completed in 1998. The road has seasonally weathered and been much traversed since, over 12 years. As I have mentioned, it has also been frequently and regularly graded each year by both parties. The road shouldering has deteriorated naturally in places over what is now 12 years of usage and grading. There is nothing surprising or unusual about this. The phenomenon of change in the gravel road's shoulders over time provides no basis to support the plaintiffs' argument that the road in its present state overall, necessarily requires precise reinstatement to its original 1998 dimensions in order for it to be functional.
100 Fourth and most fundamentally, I find that the gravel road within the carriageway area, at between 1998 and 2010, and in its current condition, has been and remains perfectly adequate for all reasonable purposes of required use as a carriageway by the plaintiffs. It was striking to me at the trial that across eight days of evidence (in a ten-day trial) that the plaintiffs were not able to identify even one actual incident of difficulty - in terms of any person or vehicle ever being prevented, inhibited or inconvenienced in traversing to or from lot 547 over the gravel road. There were simply no identified incidents of bogging, despite both Mr Staley and Mr Oreo expressing theoretical concerns in their witness statements about bogging potentially occurring at the northern edge of the road in the western area. I do not accept that there is a legitimate basis for such, as expressed, potential bogging concerns. I assess them to be 'jazzed up', meaning heavily exaggerated and so, unreliable. I will explain the significance of the phrase, 'jazzed up', later in these reasons.
101 The gravel road within the carriageway has plainly been traversed by numerous light and heavy vehicles between 1998 and 2010. On the evidence at trial, none had been obstructed at all, in the reasonable or efficient utilisation of the carriageway. None were shown to have been damaged, scraped by branches or leaves, impeded or obstructed. The functional utility of the carriageway in its present state is most graphically illustrated in the (August 2009) DVD (exhibit 10) demonstration, arranged by the defendant - showing a loaded semi-trailer and low-loader stacked with a Gregoire harvester, comfortably traversing the full 835 m of the carriageway from Caves Road towards lot 547, and then returning to Caves Road.
102 The trial evidence also showed that the defendant and its personnel, since acquiring of lot 549 in May 2001, have routinely and diligently pruned foliage from the trees (which provide windbreak protection against the prevailing winds) along the southern side of the carriageway, at lot 549's southern boundary with lot 1130. Evidence as to the regular (indeed heavy) nature of the defendant's pruning carried out to those trees was given at trial by the defendant's head gardener, Mr Roberts. I accept all his evidence, as a reliable witness of truth, in my assessment.
103 For a time during the trial the plaintiffs contended that the defendant had planted even further trees along the southern boundary, after 2001. Mr Roberts' evidence at trial under cross-examination, conclusively quashed that assertion. Properly, senior counsel for the plaintiffs withdrew the contention during his closing.
104 In my view, the windbreak protection afforded by the boundary trees and their foliage at the southern boundary of the carriageway is a subsisting (pre-1997), legitimate and reasonable utilisation of the natural environment by the defendant in protecting its vines against local prevailing winds. Furthermore, the native trees which form part of the Historic Wood are a natural and important feature of the land in this area. Their existence precedes 1997. These trees present as an important natural feature of the local landscape. This reality was recognised even by the plaintiffs in 1998, when they allowed their road contractor, Mr Penfold, to lay down a road through the carriageway across lot 549 at places through and between the existing trees, rather than cutting down trees to create a perfectly straight (east-west) road. That 1998 conduct, I think, speaks volumes for the natural significance of these existing trees as a natural and worthy feature of the local landscape, that should not be lightly disturbed.
105 I therefore reject the plaintiffs' assertions that the proposed works under component B of the proposed declaration will only be in the nature of a reinstatement of the 1998 dimensions of the gravel road - back to a uniform width of 5 m. The trial evidence does not support that broad assertion.
106 Even so, the plaintiffs still contend that a 230 m section of gravel road at the western area of the carriageway, should be constructed (or reinstated) with a northern (0.5 m) shoulder, there being, from the many photographs taken, no northern shoulder observable at present (see particularly exhibit 36, SGO 30 and SGO 31).
107 I find that the gravel road as it was first constructed in 1998, for the most part of its 835 m length, had shoulders at both sides. But the more important question is whether there is now, in 2010, any legitimate need for a reinstatement of a northern shoulder at the edge of the gravel road, in this western area? In my view, the answer to that question must be 'no'.
108 The northern side of the gravel road in the western area reached its present state and condition for a number of evolutionary reasons over time, which I find to be both explicable and legitimate. Since Mr Stuart Dickins became vineyard manager of Laurance Wines in 2005, he has been concerned to ensure that all the rows of the defendant's vines, as a part of good vineyard practice and husbandry, enjoy the benefit of sufficient groundcover. For this purpose, the earth on each side of the rows of vines is regularly turned over by ploughing (sometimes twice in a season) to a depth of 2 inches (a relatively shallow ploughing depth), and then is seeded with rye grass - in order to germinate groundcover around the vine roots. The sown rye grass in subsequent years can re-germinate, without it necessarily needing to be annually re-sown. Mr Dickins gave evidence about his ploughing and seeding works around the southern rows of vines to establish the necessary groundcover protection around the vines - in the years 2006, 2009 and 2010. His witness statement at trial became exhibit 46, and it was supplemented by further witness statements, exhibits 47 and 48. I accept all his evidence as reliable. Cross-examination showed him to be a knowledgeable and truthful witness - whose legitimate and understandable objective was to establish a premium winegrowing operation from the vines on lot 549.
109 Notwithstanding the cultivation of groundcover extending into the 10 m width of the carriageway on its northern side in the western area, the gravel road has still continuously been used and traversed by vehicles entering and exiting lot 547 (including heavily laden trucks and semi-trailers) - without manifesting any difficulties. As I indicated, no tangible incidents of impediment, obstruction or bogging emerged at trial across eight days of evidence. There is no evidence of flooding or of a problematic pooling of water at the northern side of the carriageway in the western area. There is nothing that suggests that the gravel road has become a problem, let alone a danger to vehicles, or that its structural integrity as a road was threatened for the future.
110 During the trial, the plaintiffs adduced a photograph of some pooled water seen lying on the carriageway in the western area. The photograph was taken after a heavy downpour of rain (exceeding approximately 50 mm) in early March 2010 (see photograph SGO 28 of exhibit 36). But the evidence also was that this rainwater quickly dissipated on the ground. Indeed, a close perusal of the photograph shows the water to be rippling in places, indicating it was flowing - and seemingly in a westward direction towards lot 547, and the ocean. If photograph SGO 28 was taken (by Mr Oreo) with a view to proving a pooling or waterlogging problem in the western area - requiring rectification by the reinstatement of a northern shoulder to the gravel road - it failed in that objective, when measured against all other evidence (see also SGO 29 - showing a view taken closer to the entrance to (lot 547) and the Amarok entrance gate).
111 Part of the plaintiffs' works proposals for the western area, identified under component B(b) of the minute of declaration, relates to the potential construction of one or more culverts in this area. A good deal of evidence and photographs were adduced in the latter stages of the trial on the subject of culverts. In the end, my assessment is that such evidence was of only marginal utility. The purpose of a culvert pipe running under a road, is to convey any accumulating water from one side of the road to the other, and so thereby to prevent a pooling or flooding problem that may eventually affect the integrity of the road. In the course of Mr Oreo's cross-examination on Friday afternoon, 7 May (day 6 of the trial), the first reference was made to a seemingly dysfunctional (buried) culvert located at between the 3.56 m mark along match line CC and the 3.72 m mark - being the next width measurement to the east of match line CC in the exhibit 13 survey. I use the word 'dysfunctional', since it is apparent from photographs taken that a concrete culvert pipe running north to south under the carriageway at this point was significantly obstructed by dirt, debris and leaves and so could not be functional as a culvert (see exhibit 38, photographs SGO 36, SGO 37, SGO 39, SGO 40, SGO 41; exhibits 31B, 31C, 31D, 31E, 31F, 31H).
112 Some weekend excavation around the end points of this culvert site between days 6 and 7 of the trial culminated in a submission by the plaintiffs, through Mr Oreo, as to the need for a replacement culvert or culverts. However, the uniform and more persuasive evidence from Mr Carr, Mr Dickins and Mr Roberts, is that notwithstanding that this now identified culvert obviously existed, it had been buried and blocked. It had therefore been dysfunctional for some time. Yet there had not been any water pooling difficulties in this western area. Mr Dickins, in particular, said that the phenomenon of water pooling around the roots of his vines was an issue that he strived hard to avoid, as part of good viticultural practice. To that end, Mr Dickins had implemented measures in other parts of the lot 549 vineyard, such as by laying down piping to direct and obviate some water pooling problems. But there had never, according to Mr Dickins, been any water pooling problems experienced in the area around the rows of vines along this southern boundary of lot 549, in the western area. I accept that evidence as wholly reliable.
113 Accordingly, I conclude that there is no reasonable basis established by the plaintiffs for the foreshadowed culvert works by reference to component B(b) in the minute of proposed declarations.
114 Furthermore, in the history of the communications passing between the parties leading up to the plaintiffs' writ of 24 April 2009, I detect no suggestion that there were any difficulties presenting in the western area of the carriageway on lot 549 that required redressing, let alone a water pooling problem that might require the repair, replacement or addition of a further culvert, or culverts.
115 The last observation leads me to a brief analysis of communications passing between the parties and their legal representatives, leading up to the plaintiffs' writ on 24 April 2009.
116 The defendant of course acquired lot 549 in May 2001. By April 2009, the parties had been rural neighbours for almost eight years. They would appear to have co-existed in ostensible harmony over that period, notwithstanding the tensions that sometimes can arise from time to time between rural neighbours.
117 A particular incident in this period that is insightful, arises out of the circumstances embodied within exhibits 22 and 23. On 15 March 2004, Mr Hilbert, a harvesting manager with VMS Contractors, sent a facsimile to Mr Staley at the Amarok Vineyard, in these terms:
John,
Attached is the fax to give you ammunition to fight the authorities re widening your access road.
We have jazzed it up to make it look like a real big issue when you know for us it is not.
Hope this helps you in your fight.
If VMS can help in any other way please don't hesitate to call us.
118 Mr Hilbert was not called as a witness at the trial. It is uncontroversial, however, that VMS Contractors, from time to time, did transport heavy machinery such as Gregoire harvesters along the gravel road in order to reach lot 547, to facilitate the annual harvest of the Amarok vines. This is explained in the witness statement of Mr Andrew Martin Ferreira of Riverace Contracting (exhibit 12, pars 5, 29 - 33).
119 The second page of the 15 March 2004 facsimile to Mr Staley enclosed a copy of a letter addressed to Mr Staley, signed by Mr Todd Johnson, managing director of VMS Contractors, in these terms:
SUBJECT: Safety Issue with harvesting Your Vineyard
As you are aware we have recently harvested your vineyard with our Gregoire self propelled grape harvester.
It is of serious concern to us that we have been confronted with a number of safety issues in attaining access to your vineyard.
Given that access off Caves Rd is too narrow for our truck/low loader to drop off the harvester at the vineyard we were forced to drop off the harvester at a small truck bay on Caves Rd.
Then we had to drive the harvester at night along Caves Road for approx 1 kilometre.
The harvester is over width and slow moving. Such a procedure is dangerous given the traffic on the road and the visibility at night in that area.
We therefore ask that you give this matter your serious attention so it maybe [sic] rectified before a potential accident comes to fruition.
120 A long-hand annotation, which is Mr Staley's printing at the top of this document, establishes that its content was forwarded, after its receipt, by Mr Staley to Mr Oreo. The printed notation reads:
Att: Shane copy
From John
Give me a call after you have read.
Thanks
121 Exhibit 23 reveals that on the very next day, 16 March 2004, Mr Staley forwarded the second page of the VMS communication (to Mr Staley) which carried Mr Todd Johnson's signature - as an attachment to Mr Staley's own communication to Mr Peter Laurance. Mr Staley addressed to Mr Laurance in these terms:
Re: Carriageway Access
Comments:
Dear Peter
I am enclosing a copy of my Harvesting Contractor VMS letter in regards to the carriageway access, in particular where it narrows on the western end. Considering we have 10 metres carriageway entitlement, there is barely 3 metres at this section.
According to my solicitor Joe Scurria on the other scenario it has come to a halt. Therefore we need to work on widening the existing carriageway so access for machinery can be attained particularly on the western section.
Please give me a call on the matter as soon as possible because of the urgency of the situation.
Thank you, regards
John Staley
122 An annotation to this exhibit by Mr Laurance, reads:
Glen
Pls decide a course of action + call Staley [followed by an indecipherable initial].
123 Mr Staley's covering communication to Mr Laurance is curious, since on my reading of the VMS Contractors' letter of 15 March 2004 to Mr Staley signed by Mr Johnson, the VMS Contractors letter does not raise any issue over the western end of the carriageway. Rather, this self-described 'jazzed up' communication appears only to concern itself with the issue of access (off Caves Road).
124 Mr Staley was closely cross-examined about these March 2004 communications. Eventually, he was forced to acknowledge them. Forwarding what he was told and obviously knew to be a 'jazzed up' VMS Contractors communication to him on to Mr Laurance to advance Mr Staley's own ends was, in my assessment, an act of attempted deception. That conduct does Mr Staley no credit. It causes me to be very cautious about accepting evidence given by him in this trial, unless it is against his interests or it is satisfactorily corroborated.
125 I also detected a sense of grievance and hostility against the defendant in the evidence of Mr Oreo, under cross-examination. Some of the photographs Mr Oreo took or commissioned, looked to me to have been taken at angles designed to better advance a position favourable to the plaintiffs' arguments. I found aspects of Mr Oreo's evidence at times to approach the fanciful, particularly on day 7 of the trial, concerning what he said about his discovery (over the intervening weekend) of broken fragments of the missing concrete culvert collar (or head) - once a component of the northern end of the culvert, and seen to be missing in exhibit 38, SGO 30 (in contrast, note SGO 39, where a concrete moulded end collar is seen surrounding the end of the culvert pipe on the southern side of the carriageway). At one point, Mr Oreo suggested that he had found some broken fragments from the northern side culvert collar just prior to lunch over the weekend, but then, on his return after lunch, those collar fragments were now missing (see ts 672). This unbelievable evidence confirmed to me a lack of rational perspective that also, in my assessment, clouds the reliability of Mr Oreo's evidence, at least in areas where that evidence is not otherwise independently corroborated.
126 On 18 March 2009, a strong letter of demand on behalf of the plaintiffs was despatched by Staffa Lawyers to the defendant (exhibit 30). The letter articulated a stance that is, of course, now significantly resiled from, demanding the removal of the gate to the carriageway on lot 549 at the entrance from Caves Road, as well as a removal of all trees that intruded or overhung into the 10 m width of the carriageway. But it is significant, I think, that no grievance is found expressed in the demand letter (confirmed as sent on Mr Staley's instructions), about a specific problem in the western area within the carriageway, or over any actual or potential flooding or bogging problems on the carriageway. Nor is there any suggestion in the demand letter of the need for a new or better culvert or culverts in this western area.
127 The communication of 18 March 2009 from Staffa Lawyers threatened legal action within 7 days, unless immediate action was taken in respect of three matters, namely:
128 It will also be observed that no mention is made in the demand letter of any difficulties in relation to the vine row groundcover crop extending into the northern edge of the carriageway on lot 549 at any point. A number of photographs tendered during the trial show that the plaintiffs utilise a similar groundcover practice around the Amarok vines on lot 547 - where they are growing adjacent to the gravel road on lot 547 as it proceeds west beyond the entrance gate at the south east boundary across lot 547: see exhibit 40, photographs 267 - 268 (taken around August 2009).
129 The demand letter was sent in the context of the plaintiffs' early proposal to establish a cellar door operation for Amarok Estate, from lot 547. The plaintiffs' need to secure a better and wider road across lot 549, capable of being utilised by vehicles of customers for a cellar door operation to be established on lot 547, lay at the heart of the eventual issue of the plaintiffs' writ of summons on 24 April 2009.
130 The plaintiffs issued their writ in these proceedings with an endorsed statement of claim. The plaintiffs' major concerns as then pleaded were the gate, the sign and the encroaching trees said to detract from the 10 m width of the carriageway. The statement of claim mentioned the plaintiffs' development application for lot 547 for cellar door sales, made 5 December 2008 (pars 15 - 18). But there was, in fact, no mention of any gravel track or road established within the 10 m width of carriageway, in the original statement of claim. This gravel track, as a subset feature found within the carriageway area, only emerged as a feature in the defendant's defence and counterclaim of 27 May 2009. That counterclaim sought relief pursuant to s 129C of the Transfer of Land Act, in effect to formally contract the width of the 10 m carriageway down to present (2009) width and in the same dimensions as the existing gravel track - by court ordered modification to the plaintiffs' easement rights.
131 But with amendments to the plaintiffs' statement of claim over time, the case altered very considerably between April 2009 and May 2010. The relief sought by the plaintiffs at trial was confined to the width dimension of the gravel track, its maintenance and the objection to the terms of the warning sign against trespassers, displayed on the gate.
132 This truncation in the plaintiffs' case led to the defendant abandoning the counterclaim in April 2010. Without dispute, I discharged the interlocutory injunction I had granted in June 2009, at the conclusion of counsels' closing submissions at the trial, on 13 May 2010.
133 As part of the preparations for the commencement of the trial in September 2009 (interrupted in circumstances I have explained) both sides commissioned the detailed surveys in respect of the carriageway, in August 2009. The plaintiffs' survey (exhibit 5) was prepared by BSO Development Consultants on 12 August 2009. It is to be read in conjunction with exhibit 1, an expert report by the plaintiffs' senior licensed surveyor, Malcolm Cockman. Mr Cockman's report attaches a series of 21 photographs, taken between 6 and 7 August 2009 and containing views oriented mainly east or west, along the carriageway at various marked points (referred to as stations). Exhibit 5 identifies a location for each of the 21 photographs by the numbers corresponding with each station, as identified on the survey.
134 The defendant's survey was prepared by ServCon Pty Ltd on 10 August 2009 (exhibit 13). It is carried out at a smaller scale (1:400, compared to exhibit 5's, 1:200). But the advantage of exhibit 13 is that it contains precise width measurements for the gravel road at points along the length of the 835 m gravel road, as a subset area within the 10 m wide carriageway area, at various intervals.
135 Both surveys were tendered consensually in the trial, without need for formal proof by their respective authors/surveyors. It will be remembered that the plaintiffs' final minute of proposed declaratory relief has been drawn at places by its reference to exhibit 13, the defendant's survey.
136 There is significance, I think, in the fact that it was not until August 2009 that the two surveys emerged. From that time, both parties first knew with some assurance the precise delineation of the 10 m carriageway on the ground, and along the 835 m southern boundary of lot 549.
137 The April 2009 objection of the plaintiffs against the gate at the eastern end of the carriageway, where it abuts Caves Road, was eventually withdrawn. The first statement of claim, endorsed on the writ, also carried a suggestion that the gate had been locked from time to time. However the trial evidence clearly was that the bi-fold gate sections that swing off hinges from posts, and meets at the middle, is held closed only by a chain. No complaint is now pressed about this gate or its chain.
138 The remaining live issue is over the terms of the sign which the defendant caused to be affixed to its gate, which reads (in red against a white background):
PRIVATE PROPERTY
TRESPASSERS
WILL BE
PROSECUTED
The gate and sign are clearly visible in photograph 6, part of exhibit 1 (taken between 6 and 7 August 2009).
139 The witness statements of Mr Staley and Mr Oreo provide some uncontroversial background about the gate arrangements. It was the plaintiffs who installed the first bi-fold gate at the entrance to the carriageway near Caves Road, while they were developing Amarok. Mr Staley said that there was once a sign affixed on one section of the gate which read 'Amarok Estate - 2km Keep Left, JR & EF Staley' (exhibit 21, par 18). However, the defendant subsequently erected their new gate across the carriageway (Caves Road entrance) not long after it purchased lot 549 and then affixed its signage.
140 Mr Staley explained the process of entering the carriageway using the defendant's gate, as:
The process for opening the gate is to get out of your vehicle and undo the chain, fold the gates back, drive through and then do the reverse process to close the gate (par 21).
141 Mr Roberts' evidence was that a gate to enter to the carriageway from Caves Road had always been there, although it had changed in position over time (exhibit 50, par 47).
142 All the defendant's witnesses related difficulties encountered with trespassers on lot 549, particularly when the gate had been left open; see, for instance, Mr Carr's evidence to this effect, at exhibit 42, par 46. Proximity of the Laurance Wine cellar door outlet operating from the neighbouring (at the south) lot 1130 since September 2006, drew members of the public to that neighbouring site. There were concerns that persons may then stray from lot 1130, into the private vineyard and premises on lot 549, without some protections to privacy, afforded by the sign on a closed gate. Mr Carr said that trespassers posed a threat to safety, security and privacy on lot 549. Mr Carr resided on lot 549 with his family and there were the other residences on lot 549 at which Mr and Mrs Laurance stay intermittently, sometimes bringing their invited guests.
143 Mr Dickins referred to similar safety and privacy considerations, see exhibit 46, pars 37 - 51). He said (par 49):
In my experience, if the Gate is not shut people assume public access to Lot 549.
144 At par 44 of his statement, Mr Dickins recounted an incident in July 2009, when six cars of (vineyard pruning) contractors said to be looking for the plaintiffs' Amarok vineyard on lot 547, arrived at private dwellings on lot 549. The contractors had to be redirected (south) by Mr Dickins back to the carriageway running along the southern boundary of lot 549, then (west) towards the entrance to the gate at the entrance to lot 547.
145 The defendant's head gardener Mr Roberts related in his statement (exhibit 50, pars 48 - 49) that:
Since the Cellar Door opened and since the Laurances have done so much work on this property, quite a lot of people drive onto the Servient Land when the Gate is left open.
I know this because I found them on the Servient Land on many occasions. In summer, on any day of the week, I find people driving around the Servient Land when they are not supposed to be there, even in winter I will find some.
146 Mr Roberts said that on occasions he had needed to chase down some unauthorised persons he found on lot 549, ask them who they were, then escort them from lot 549 (exhibit 50, par 51). Mr Roberts contrasts the private character of lot 549 to the public Laurance Wines cellar door facilities which are attractive and open to the general public on the adjacent lot 1130 to the south. He observed:
The cellar door property is quite grand and the grounds are there to attract people, and for them to enjoy. The lawn is for families to kick the footy, it is kid friendly (par 53).
147 Mrs Dianne Laurance gave evidence of her privacy concerns and the trespassers issue (exhibit 53) for lot 549. Mr and Mrs Laurance reside in Perth, but they visit and stay at lot 549, intermittently. Mrs Laurance said:
148 I accept this evidence from the defendant's witnesses as to a trespasser problem regarding lot 549. In my opinion, safety, security and privacy concerns over trespassers, as expressed by Mr Carr, Mr Dickins, Mr Roberts and Mrs Laurance, are genuine considerations for lot 549. Both lots 549 and 547 remain private property. The private right of carriageway enjoyed by the owners from time to time of lot 547 across lot 549 for themselves (and their contractors, workmen and visitors), does not erode the 'private property' character of lot 549. The sign, in that respect, is an accurate statement as to 'private property'.
149 As I understood the plaintiffs' senior counsel, no complaint is now made over any factual inaccuracy in the terms of the current sign which the defendant has caused to be displayed on the gate. Rather, the plaintiffs' stance is that the sign is, or amounts to, an unreasonable interference against the plaintiffs' property rights, thereby constituting an actionable private nuisance. The plaintiffs argue that the terms of the sign (wrongly) deter legitimate potential visitors to lot 547, who may fear prosecution as trespassers, if they enter the carriageway from Caves Road, to traverse westward to reach lot 547.
150 Significantly, however, no person gave evidence at the trial about being deterred from entering the carriageway by the terms of the present sign. This was so despite the present sign has been positioned on the gate since 2004. Neither Mr Staley nor Mr Oreo could give evidence as to any particular incident where either a visitor, invitee, contractor or workman, who was seeking to approach lot 547 from Caves Road by traversing lot 549 to do so had been at all diverted, confused or inhibited from entering the carriageway by reason of the presence, or terms of the current warning sign against trespassers. This is the case notwithstanding that on 22 July 2005 Mr Staley had written to Mr and Mrs Laurance in terms (exhibit 54):
We have had numerous clients, business traders and work contractors inform us of how misleading signs on the gate are and in one case may have cost us some business when a visitor from overseas was on a very tight schedule and bypassed us when he saw the gate sign.
151 In that communication, Mr Staley requested an alternate sign, referring to Amarok Estate being 1 km ahead. This correspondence plainly suggests there were, by 2005, numerous persons had already been affected by the sign. If that were true, I would have expected some direct evidence of this to have been forthcoming at trial. However, there was no evidence to that effect adduced by the plaintiffs. Nor is this a matter for inferences to that end to be drawn, in my view. It will be remembered that there is a road verge sign positioned on the western side of Caves Road which does identify Amarok Estate, by reference to entry from Caves Road to the carriageway (see exhibits 39 and 45).
152 There is obviously the scope for any contractors, invitees, guests or persons with a legitimate motive visiting lot 547 for the first time, to make prior arrangements with Mr Oreo or Mr Staley directly beforehand and thereby to obtain precise directions to reach lot 547. The plaintiffs have a website that identifies the location of lot 547 on a map of the area (see exhibit 34, page 247). There is scope for the website to be augmented with even more elaborate directions about entry from Caves Road along the carriageway through a closed gate at the southern boundary of lot 549, if this were thought to be necessary or desirable by the plaintiffs.
153 The defendant's status quo position in respect of the trespassers warning sign, was expressed in Mr Laurance's facsimile response to Mr Staley, of 31 August 2005 (exhibit 55), in which he replied (in part):
In the last four years in response to requests from you we have:
(1) Shifted the gate 10 metres inside our boundary so that heavy machinery coming to your property can safely negotiate the entry on to and off Caves Road and still open and close the gate,
(2) Upgraded the entry/exit apron from gravel to a paved surface at a cost of some $14,000,
(3) Trimmed trees along the right-of-way that you have complained of;
(4) At a projected cost to us of some $40,000, offered to create for you an alternative right-of-way on the northern boundary of our neighbouring property to the south, which you refuse because we sought to protect that property also by having a gate.
To mitigate the signs on this gate would only exacerbate the problems outlined above. As for your overseas visitor and other contractors and invitees, you have a public directional sign on Caves Road adjacent to the gate, and no doubt you could give them the same explicit instructions about the gate signs that you specified in your fax to me.
154 As I mentioned, the plaintiffs, at the end of day 8 of the trial, abandoned any claim to injunctive relief. There is therefore no basis for any compulsive order of the court that requires a removal of the current trespassers warning sign displayed on the gate. Even had permanent injunctive relief to that end been pressed, I would, in that event, as a matter of overall discretion, have declined to grant it. It is appropriate, I think, to once again characterise the plaintiffs' expressed grievance over the defendant's sign by the terminology of the March 2004 VMS Contractors' correspondence to Mr Staley (exhibit 22) - as 'jazzed up'.
155 To make good a cause of action in private nuisance, it would need to be demonstrated that there was a 'substantial interference' against the carriageway rights of the plaintiffs. However, I find, on all the evidence concerning the warning sign, no interference at all, let alone a substantial interference. The only attempt by the plaintiffs to adduce evidence of any persons being diverted as regards approaching lot 547 by the terms of the warning sign against trespassers, emerged during the cross-examinations of Mr Dickins and Mr Carr, by reference to the incident Mr Dickins described (at par 44 of his statement) concerning the incident with six car loads of ostensibly lost pruning contractors. A suggestion was put in cross-examination to Mr Dickins that a replacement sign, in terms as are now advocated by the plaintiffs, would have avoided this incident.
156 However, that line of cross-examination, in my assessment, invited only speculation. There was no evidence about the nature of any (pre-entry) directional instructions towards lot 547, that these pruning contractors had received, if any. Nor, in reference to the incident, would the terms of the present sign appear to have deflected the carloads of contractors from actually entering lot 549, via the gate abutting Caves Road. There can therefore be no issue as to those persons being deterred from entering lot 549 by the present sign that may be inferred from that incident.
157 It may have been open for the plaintiffs to lead evidence at the trial from, say, a human behaviour expert - as to the likely causative ramifications (if any) against legitimate first-time visitors, arising out of the terms of this trespassers' warning sign found affixed to the closed gate, as against someone holding a legitimate reason for seeking to enter the carriageway, to reach lot 547. No expert evidence about the potential causative impact of the warning sign was adduced.
158 Accordingly, in my overall assessment, there is absolutely no evidentiary basis established by the plaintiffs for declaratory relief, either in relation to the existing trespassers warning sign, or for the plaintiffs' proposed replacement sign, under par D of the plaintiffs' proposed minute of declaratory relief.
159 The plaintiffs advance only one case authority in support of their grievance against the existing warning sign, the decision of Burchett AJ in Dresdner. It is readily apparent, however, from a perusal of the facts underlying Dresdner, that its urban traffic scenario is wholly distinguishable from the present 835 m rural road situation. Furthermore, par 5 of Burchett AJ's reasons makes it plain that it was a combination of closed gates and erected private property signs which, in Dresdner, generated worsening traffic congestion, producing not only inconvenience, but also a threat to the safety of truck drivers using the right of way: see Dresdner [4] - [5], [22]. In Dresdner, a combination of gates, signs, frames and bars limiting the height of vehicles that could use the urban carriageway, was a source of 'real and substantial interference, against the enjoyment' of those rights of carriageway. That urban situation is a long way distant from the facts of this litigation, in my assessment.
160 The plaintiffs' claim for declaratory relief, grounded upon private nuisance, and arising out of the present dimensions of the gravel road within the carriageway and signage on the defendant's gate at the (eastern) Caves Road end of the carriageway, assessed either independently or in combination, must fail. The trial evidence has supplied no basis to sustain a case in private nuisance against the defendant. The plaintiffs have failed to establish a substantial interference against the enjoyment of their rights of carriageway over lot 549, even assuming those rights are evaluated on the basis that they embrace the full ambit and legal consequences delivered under the words of the Ninth Schedule to the Transfer of Land Act. It is therefore unnecessary for me, in the end, to resolve the legal issue raised by the defendant's submission that the words of the Ninth Schedule are not be enlivened in present circumstances of a creation of a carriageway easement by reservation (in contrast to the creation of such easement rights by express grant).
161 Aside from the cause of action grounded upon private nuisance, I assess it as appropriate to independently evaluate the plaintiffs' claims seeking declaratory relief, in regard to issues associated with maintenance work that is proposed to the gravel road by the plaintiffs. This is on the basis that declaratory relief may be available, as a matter of the plaintiffs' right to seek a clarification under a declaration of a court, concerning the extent of its proprietary carriageway rights over lot 549.
162 Even on that more limited basis for relief, however, my assessment is that the declarations which are sought under the plaintiffs' minute of proposed declarations, pars A, B and C, are simply not justified. That is the case even if the declaratory relief was just confined to the western area of the carriageway (ie under par B of the minute of proposed declaration).
163 Declaration B, as framed, embodies a jaundiced preoccupation over the gravel road as a formal subcomponent of the rights of carriageway. But this road, as I have explained, developed as an incident of history, out of the day-to-day usage of the carriageway rights. In the period between May 2001, when the defendant acquired lot 549, to June 2009, when a grading incident arose giving rise to the interlocutory injunctive relief obtained by the defendant, these rural neighbours would otherwise appear to have acted between themselves with appropriate restraint in relation to their mutual use and repair of the gravel road's surface within the 10 m carriageway.
164 It is only to be expected that the surface condition of such a road, particularly at its extremities, would fluctuate over time, across the seasons and under expected wear and tear from regular vehicular use. The surface condition of a rural gravel road of 835 m length linking neighbouring properties, in terms of its fluctuating surface condition from time to time, does not seem to me to be appropriate as a subject matter to be governed by the elaborate regime sought to be set down by the plaintiffs under pars A, B and C of the minute of proposed declaratory relief. Such a codified regime sought to be formalised under the proposed declarations, presents to me as being altogether too prescriptive to be of a sensible utility in this day-to-day scenario of rural neighbouring properties. Day-to-day utilisation of rights of carriageway across 835 m of gravel road along the southern boundary of lot 549 should be exercised sensibly and reasonably, with users exhibiting appropriate restraint, respect and consideration for each other party's legitimate carriageway usage interests.
165 What I would view as a further descent into petulance, by the court sanctioning, through declaratory relief, the ongoing turf war that could be required to be regularly assessed by a court by reference to usage incidents arising in the daily use of a subcomponent area of the carriageway rights in this case, is wholly inappropriate. So, I would also refuse declaratory relief as a matter of discretion, in any event, even if (contrary to my primary assessment) a sufficient evidentiary foundation for its grant could be shown. The advocated declaration would lack day-to-day utility and encourage petty behaviour. Courts cannot force neighbours to act reasonably or sensibly towards each other. A codified conduct regime by the declaration of a court is an inadequate substitute for common courtesy and basic goodwill being recognised as the expected standard of behaviour between rural neighbours.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : STALEY -v- PIVOT GROUP PTY LTD [No 6] [2010] WASC 228 (S)
HEARD : 21 & 22 SEPTEMBER 2009, 4-7 & 10-13 MAY 2010 AND ON THE PAPERS
Costs - Application by successful defendant for indemnity costs of trial - Unreasonable conduct on part of plaintiff relied upon - Indemnity costs orders made
Arundel Chiropractic Centre Pty Ltd v Deputy Commission of Taxation [2001] HCA 26; (2001) 179 ALR 406
Cazaly Iron Pty Ltd v Minister for Resources [No 5] [2008] WASCA 181
EMI Records Ltd v Ian Cameron Wallace Ltd [1983] Ch 59
Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202; (1988) 81 ALR 397
Staley v Pivot Group Pty Ltd [No 3] [2009] WASC 355
Staley v Pivot Group Pty Ltd [No 5] [2010] WASC 124
Staley v Pivot Group Pty Ltd [No 6] [2010] WASC 228
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129(S)
1 KENNETH MARTIN J: My reasons for decision in the aftermath of this 10-day trial were delivered on 30 August 2010, dismissing the plaintiffs' claim. A counterclaim brought by the defendant was, by leave, discontinued earlier in April 2010, before the trial substantively resumed in May.
2 The parties were provided with an advance copy of my reasons, in accordance with Consolidated Practice Direction 8.1, pars 1 - 18, on 27 August 2010. The following Monday, 30 August 2010, counsel for the successful defendant, Ms Donald, moved for what are essentially indemnity costs orders against the plaintiffs in the aftermath of the trial result, as regards both the action and the counterclaim, in terms of a minute provided to the court, in terms:
2.1 claim, to be taxed if not agreed, including any reserved costs and transcript fees; and
2.2 counterclaim, to be taxed if not agreed, except to the extent those costs solely relate to the defendant's claim for modification of the right of carriageway pursuant to s 129C of the Transfer of Land Act 1893 (WA).
3 At that time I made an order, per paragraph 1 of the defendant's minute, dismissing the plaintiffs' claim. But I otherwise reserved for determination all issues as to costs. Counsel for the unsuccessful plaintiffs, Mr Garnsworthy, indicated to me at the time that the application for indemnity costs orders by the defendant would be opposed. But he sought time to file written submissions explaining that stance of the plaintiffs. The parties also expressed their amenability to me dealing with the issue of costs on the papers, on a basis that the plaintiffs be allowed 10 days to file written submissions as to their position and the defendant would thereafter have seven days within which to respond. In due course, I received the plaintiffs' written submissions of 7 September 2010 (filed 8 September 2010). Thereafter, responsive written submissions from the defendant, of 16 September 2010, were received. On 22 September 2010, I received from the plaintiffs further written submissions in response to the defendant's submissions. I had not made provision in my orders for a receipt of that further communication. Nevertheless, I have considered and assessed its content.
4 On 30 August 2010, Ms Donald had moved, in effect, for indemnity costs orders, on the argued basis that my reasons for judgment contained a catalogue of unacceptable conduct by the plaintiffs that more than met the applicable legal threshold for such orders by establishing improper, or at least unreasonable, conduct on the part of the plaintiffs, or their legal advisers.
5 The relevant legal principles governing the making of indemnity costs orders are recently summarised in the court's reasons for judgment in Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129(S) [10]. Moreover, in Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95 [8] - [9], Pullin J (as his Honour then was) said:
The usual costs order is one for party and party costs. An order for indemnity costs will only be made if there is some special or unusual feature in the case to justify a departure from the ordinary practice. In effect, the court has jurisdiction to make an indemnity costs order whenever justice requires such an order. Unioil International Pty Ltd v Deloitte Touche Tohmatsu (1997) 18 WAR 190 at 191; Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225 at 233. When the justice of the case does require such an order, then the court will have a discretion as to whether the order should be made.
Many examples can be found where an indemnity costs order has been made. Suffice it to say that most of these involve some element of improper, or at least unreasonable, conduct on the part of the parties or their legal advisors in relation to the case. See the examples given by Sheppard J in Colgate-Palmolive v Cussons (supra) at page 233 and the circumstances referred to in Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd [1988] FCA 202; (1988) 81 ALR 397 and in Unioil's case. ...
In this case, the plaintiff submits that there was unreasonable conduct in the running of the defendant's case.
Even if there has been such conduct, an indemnity costs order will not be made if the costs would be covered by an order for party and party costs (see Unioil's case at 193) or by a special costs order.
6 In moving for indemnity costs orders against the plaintiffs, Ms Donald pressed as essential considerations:
(a) the plaintiffs' conduct throughout the matter both leading up to and during the trial; and
(b) the court's ultimate finding that the plaintiffs' claims had no basis in fact.
7 The defendant also relied upon my trial reasons at [91], where I had observed that the plaintiffs' case had been something of a moving feast by frequent and often significant shifts in the plaintiffs' case, both before trial and then from the start of the trial up to its conclusion on day 10: see Staley v Pivot Group Pty Ltd [No 6] [2010] WASC 228 [91] - [92].
8 In written responsive submissions of 16 September 2010, the defendant said:
9 The plaintiffs' written submissions not only opposed the making of special (indemnity) costs orders, but went further (although this was not foreshadowed by counsel for the plaintiffs on 30 August 2010), seeking orders that the defendant pay the plaintiffs' costs of the defendant's discontinued counterclaim on an indemnity basis (by reference to an affidavit of the plaintiffs' solicitor, Mr Staffa, affirmed 6 September 2010: see par 3(b)). The plaintiffs' written submissions (par 6.02) also seek costs in relation to 'the injunction application abandoned by the Defendant'.
10 At a late stage of the matter, with the trial being concluded, the plaintiffs strictly should have sought leave to file and have read Mr Staffa's affidavit in support of their arguments. Nevertheless, I have had regard to Mr Staffa's affidavit of 6 September 2010 and to his annexures thereto. Essentially, the affidavit sets out a chronology of events relied upon by the plaintiffs in augmentation of their stance opposing indemnity costs orders. It is not clear to me why the plaintiffs thought it appropriate or necessary to file a further affidavit, when a chronology would have sufficed.
11 The plaintiffs' submissions also assert that the formulation of the indemnity costs orders under the defendant's minute is incorrect as a matter of principle. By reference to decisions such as Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202; (1988) 81 ALR 397 and EMI Records Ltd v Ian Cameron Wallace Ltd [1983] Ch 59, the plaintiffs contend that the defendant's minute should have been formulated on the basis of articulating, at par 3, an accepted limitation to an award of indemnity costs, by the standard proviso 'save for costs of unreasonable amount or unreasonably incurred'. Paragraph 3 of the minute refers, by way of proviso, only to costs 'unreasonably incurred'. The plaintiffs' arguments raises the need to add further limiting words, namely, 'and of unreasonable amount'.
12 The plaintiffs point out that indemnity costs orders have already been made in favour of the defendant during the course of the litigation, it being said that there must be no double counting in relation to:
(a) costs thrown away by the required adjournment of the trial in September 2009; and
(b) costs thrown away by the amendment to the statement of claim.
13 The plaintiffs do make a limited concession in their submissions, that special orders as to costs may be appropriate in relation to:
(b) counsel fee on trial (but not including subsequent days of trial),
14 The plaintiffs seek to remind the court (correctly) that as a matter of principle, indemnity costs orders carry extraordinarily punitive costs consequences and therefore should only be made where special circumstances are demonstrated justifying such orders. Accordingly, the court must exercise considerable caution before allowing itself to be satisfied that such an order is appropriate. The plaintiffs mention observations by Callinan J in Arundel Chiropractic Centre Pty Ltd v Deputy Commission of Taxation [2001] HCA 26; (2001) 179 ALR 406 [40], where his Honour said:
I would not order indemnity costs as the occasion for an order for these should, in my opinion, be exceedingly rare, as they have a tendency to encourage extravagance and put the quantum of legal fees beyond the effective scrutiny of the courts and their taxing officers. By costs on a solicitor and client basis I mean the actual costs incurred on proper and necessary instructions by the client, and the actual costs and outlays to the extent that they were reasonably incurred in this case.
15 Essentially, by reference to the numerous observations I rendered in my reasons for decision in Staley v Pivot [No 6] (see [28], [33], [35] - [37], [44], [72] - [73], [75] and [78]), I am of the view that the present action is an exceptional case where, in the aftermath of a 10-day trial, it is very clear to me that indemnity costs orders should be made in favour of the defendant against the plaintiffs, as regards the plaintiffs' unsuccessful claims against the defendant.
16 The justification for indemnity costs orders in the present case goes well beyond the fact that the plaintiffs were ultimately unsuccessful at trial in respect of their claims for declaratory relief, as regards what they viewed as maintenance works upon the right of way, and their objections against the warning sign to trespassers erected on the defendant's gate at the Caves Road entrance, at the eastern end of the right of way. Accepting, as a matter of principle, that considerable caution is called for before making an indemnity costs order, I am nevertheless well satisfied here that such orders are fully appropriate.
17 This conclusion is reached by reason of what I assess as the wholly unreasonable manner in which the plaintiffs conducted the proceedings right from commencement of the litigation up to the end of what was, in the end, a 10-day trial. I feel it is appropriate to refer again only to one observation I made at [92] of the reasons concerning the 'perpetual motion' in the plaintiffs' case, even after the case recommenced in May 2010 and following the earlier most unsatisfactory circumstances in which an urgent trial had commenced in September 2009, but then had to be adjourned: see my reasons in Staley v Pivot Group Pty Ltd [No 3] [2009] WASC 355.
18 On its recommencement in May 2010, the trial still manifested on a daily basis the unsatisfactory hallmarks of a 'work in progress', as it continued to evolve and shrink to a point where, ultimately, only declaratory relief was sought, and mainly focused in geographic location to the western end of the right of way. The conduct of the trial in that evolving way, in my view, was wholly unnecessary and unreasonable, reflecting inadequate preparation by way of proofing of witnesses and a failure to come to grips with some in principle deficiencies in the claim at a much earlier time. The sanction of an indemnity costs order is, in those circumstances, fully appropriate to mark the court's disapproval of what has taken place.
19 Paragraph 4.60.14 of the plaintiffs' written submissions of 8 September 2010 reads:
The proposition that a case is in a constant state of flux (which is not conceded) does not lead to the conclusion ...
20 However, at [92] of the reasons for decision, I said:
The plaintiffs' seemingly perpetual motion has produced, in my view, the unfortunate consequence that what is essentially a neighbourhood boundary dispute of rather small moment between rural landowners could not be resolved through less formal means, rather than by a full-scale 10 day trial in the Supreme Court of Western Australia. My firm impression arising out of the trial is that, with the plaintiffs' case in a state of flux and revision over precisely what roadworks it was proposing - even up to day 10 of the trial, as I have explained above, it is no surprise that the parties were unable to earlier reach a more sensible compromise.
21 My observations at [92] are not open as subject matter for concession by the plaintiffs.
22 The plaintiffs' ongoing adjustments to its case (even during the trial) would have made it difficult to reach an earlier out of court resolution. Resolution is hard to achieve in circumstances where one party has not arrived at a final position about its intended case - as the plaintiffs' conduct in the trial conclusively showed.
23 At par 3.00 of plaintiffs' written responsive submissions (filed without leave on 22 September 2010), Mr Garnsworthy submitted:
To describe the plaintiff's [sic] case as perpetual motion (twice) is to descend to the level of abuse. The plaintiff [sic] says that the defendant did have the opportunity to resolve the issues at mediation but had no willingness to do so. Mr and Mrs Lawrence [sic] did not attend the mediation.
25 Having reached a conclusion that the costs of the plaintiffs' unsuccessful action should be awarded as a matter of principle to the defendant on an indemnity basis, it becomes necessary to deal with the issue of the discontinued counterclaim, which the defendant initially advanced, but then withdrew with leave in April 2010.
26 It is my view that the plaintiffs' wholesale amendments to its case by way of excisions, under its further amended statement of claim of 15 April 2010, provided a proper and reasonable platform for the defendant to decide, at that time, that in the face of what had become a significantly truncated case, it was no longer necessary for the defendant to pursue a counterclaim and so, to discontinue at that point.
27 It is clear from par 2.2 of the defendant's minute, that the defendant does not seek any costs in respect of aspects of the counterclaim by which it pursued relief under s 129C of the Transfer of Land Act. That (properly made) concession acknowledges the constraints of s 129C(8), which debars an order for costs in such circumstances.
28 However, in addition to relief under s 129C, the defendant's counterclaim had, before it was discontinued, also sought:
An injunction restraining the plaintiffs themselves or by their servants or employees and otherwise from causing or permitting excessive use of the ROW.
29 This relief by the counterclaim was conceived by the defendant in earlier circumstances when the plaintiffs had been pursuing an application to the Shire of Busselton seeking approval for a cellar door facility to be commenced from lot 547 - an eventuality that was likely to have carried with it a prospect of the accompanying increase in traffic flow along the right of way. An abandonment by the plaintiffs of their cellar door proposal (as reflected in the excision amendments to the plaintiffs' case carried into effect under the further amended statement of claim of 15 April 2010) removed the cellar door increased traffic threat and therefore any need, from that time, for the injunctive relief sought by the defendant on its counterclaim.
30 However, the ultimate merits of this aspect of the discontinued counterclaim were never finally evaluated at a trial. I am of the view, therefore, that the defendant should not have the costs of the counterclaim, even as is sought under the minute, since it is not clear to me that the defendant would ultimately have been successful at a trial on the non-s 129C aspects of its counterclaim. The defendant should be permitted, without any cost penalty, to withdraw that counterclaim - by there being no orders made against it regarding the costs of the discontinued counterclaim. The plaintiffs will not receive an order in their favour for costs as regards the discontinued counterclaim, let alone the requested order for indemnity costs. Accordingly, I will not make any costs orders concerning the discontinued counterclaim, other than for orders already made.
31 There is merit, I think, in the plaintiffs' observations to the effect that the defendant has had the benefit of indemnity costs orders in respect of its costs thrown away, associated both with the adjournment of the trial in September 2009, and then in respect of the amendment to the statement of claim. Accordingly, it seems appropriate to avoid doubling up, to preface order 2 in the defendant's minute by the words, 'Save to the extent that earlier orders dealing with aspects of the costs of this action have already been made in the defendant's favour (which orders shall subsist)', and then continuing per order 2 of the minute.
32 Furthermore, it seems that there is also merit in the plaintiffs' observation as to the formulation of indemnity costs orders in terms of a standard further qualification as to 'unreasonable amount', as well as against costs 'unreasonably incurred': see Flotilla [24]. So, I will amend and augment order 3 of the minute accordingly, to provide: 'except to the extent that such costs were unreasonably incurred or are of unreasonable amount'.
33 I do note observations in the parties' submissions concerning the decision in Cazaly Iron Pty Ltd v Minister for Resources [No 5] [2008] WASCA 181 [9] and [10]. In my view, it is appropriate here that order 3 in the minute be made express on the basis of it removing all limits in respect of maximum allowable times, amounts and hourly and daily rates - an outcome towards full indemnification I consider to be appropriate in the circumstances. That would nevertheless leave open any ultimate approval of the defendant's bill of costs by the taxing officer, under the taxing officer's assessment towards the costs as claimed by the defendant, if shown by the plaintiffs to be either unreasonable in amount, or unreasonably incurred: Cazaly [10]; Flotilla [28].
34 The plaintiffs' written submissions foreshadowed that if indemnity costs orders were to be made, that the plaintiffs would seek to be granted leave to inspect the defendant's solicitor's file. I have already dealt with a similar application by the plaintiffs, and declined then to make such an order on a previous occasion in the interlocutory context: see Staley v Pivot Group Pty Ltd [No 5] [2010] WASC 124. No relevant material is relied upon by the plaintiffs in support of such file inspection orders at this time (there being nothing in Mr Staffa's affidavit to which I referred which, in my view, provides a basis for such a file inspection order). It would be a matter for the plaintiffs to seek to persuade a taxing officer that such an inspection order was appropriate, were it able to do so. Therefore I again decline the request to make an inspection order, on the basis of the plaintiffs' ambit request in that regard.
35 Accordingly, the orders which I make at the publication of these reasons as to costs shall be in terms as set out below. I have already, of course, made my order in terms of par 1 of the defendant's minute on 30 August 2010 - namely that the plaintiffs' claim be dismissed.
36 There will now be the following further orders dealing with costs by way of final disposition of the matter, in these terms:
Berryman
Sonnenschein
(1987) 47 SASR 455
(2007) 233 CLR 528
(2001) 179 ALR 406
(2003) 28 WAR 95
(1988) 81 ALR 397
(1997) 18 WAR 190
(1993) 46 FCR 225