HIS HONOUR: Before the Court for consideration is an ex parte application by the plaintiffs, Mr and Mrs Eaton, for interim ancillary injunctive relief in relation to the defendants, Mr and Mrs Hamilton, concerning lights located on the property of Mr and Mrs Hamilton.
A Summons was filed today, 17 December 2021, seeking damages and various interlocutory relief. Mr Horowitz, who appears for the plaintiffs, confirmed that the damages claim is a reference to a claim in the tort of private nuisance.
A Notice of Motion was also filed in court with leave on 17 December 2021 seeking interim relief and relying on two affidavits which I will come to. The plaintiffs read, in support of the application, the following two affidavits:
1. The affidavit of William Joseph Eaton, sworn 17 December 2021; and
2. The affidavit of Amanda Heather Jane Eaton, sworn 17 December 2021.
Mr Eaton's affidavit has a number of annexures to it and refers to the main alleged current problem which is the alleged erection by the defendants of white flashing lights and other flashing lights between August 2020 and this year. The annexures to the affidavit at p 10 give an aerial view of the area with the location of the different lights shown. There are also two medical reports from a medical practitioner, the first dated 7 June 2021, referring to Ms Eaton's medical condition where exposure to flashing lights could bring on an epileptic seizure. The second report dated 8 October 2021 refers to extreme anxiety, stress and insomnia. The affidavit also annexes various text messages which are referred to in the affidavit. Also annexed are two applications for apprehended personal violence orders, one by members of the Hamilton family against Mr Eaton, the plaintiff, and one by the Eatons against Mr Hamilton. It is clear from this evidence that there is substantial conflict between the two neighbours.
Also annexed is a letter from the Eaton's instructing solicitor to the solicitor apparently acting for the Hamiltons, seeking to have the bright lights removed and making allegations that they constitute a nuisance. There has been no proper response to that letter.
Of much concern is the psychological effect on Mrs Eaton of the lights and there are suggestions of regrettable self-harm.
The first issue before the Court is for the Court to be satisfied that the Court has jurisdiction to hear the application. As there is a claim for damages for the tort of private nuisance, it appears that the matter falls within the definition of an "action" under s 44 of the District Court Act 1973 (NSW). It seems that the injunctive relief sought falls within the concept of ancillary equitable relief under s 46 of that Act. I refer to the detailed consideration of the District Court's jurisdiction including to grant injunctions by Leeming JA in Great Northern Developments Pty Ltd v Lane [2021] NSWCA 150 at [79]-[105]. I also refer to my analysis of the Court's jurisdiction in Glenn v Kemp [2021] NSWDC 656, a decision handed down by me last month where from paragraph 6 I considered the Court's jurisdiction to give equitable relief. As I indicated in paragraph 12 of that decision, relying on his Honour Leeming JA's analysis in Great Northern Developments, it appears that the Court has power to grant injunctions under s 46 to give ancillary equitable relief where there is an action before the Court. It may be that the action for private nuisance needs to be properly pleaded. Accordingly, for the purposes of this interim application, I am satisfied that the Court has jurisdiction to consider it.
The Court also heard some brief supplementary oral evidence from Mr Eaton who gave evidence of the chronology of the erection of lights by the defendants at their premises and that this occurred between August 2020 and 4 December 2021. Some of these lights were white and some of them were coloured, but they all appeared to be flashing.
Mr Eaton gave evidence that the quantum of the lights has increased from August 2020 to April 2021 and then, following the erection of a screening between the properties to avoid some of the reflection of the flashing lights, more and higher lights by the defendants were erected in October 2021 and December 2021. The most recent lights referred to, being those erected on 4 December 2021, were said by Mr Eaton to be white and flashing.
I am satisfied on an interim basis that the lights do not appear to be Christmas lights.
The question therefore is whether an injunction should be granted. The principles in relation to the grant of an injunction have been stated in many cases. The primary case is Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at page 68. There, Gleeson CJ and Crennan J noted that in all applications for an interlocutory injunction, the Court will ask whether the plaintiff has shown:
1. That there is a serious question to be tried as to the plaintiff's entitlement to relief;
2. That the plaintiff is likely to suffer injury for which damages would not be an adequate remedy; and
3. That the balance of convenience favours the granting of an injunction.
These principles have been confirmed in many cases. For example, I refer to Wakim v Wakim [2018] NSWCA 61 at paragraphs 19 to 23 per Payne JA and more recently by Black J in the matter of NorthWest Healthcare Australia Re Ltd [2021] NSWSC 816 at paragraph 56. There his Honour stated:
"56. So far as NorthWest seeks an injunction in equity, I should apply the principles set out by the High Court of Australia in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46 and helpfully summarised in Stratford Son Ltd v OM Holdings Ltd (2011) 83 ACSR 84; [2011] FCA 414 at [7] ff. In order to obtain interlocutory relief, NorthWest must not only demonstrate a prima facie case or serious question to be tried as to its entitlement to the relief sought at the final hearing, but also that damages would not be an adequate remedy and that the balance of convenience favours the grant of an injunction on an interlocutory basis. Those considerations are inter-related and, the greater the extent to which the balance of convenience favours one course over another, the less strong a case for final relief might be required to justify an injunction; conversely, the stronger the case for final relief, the less that might be required to tip the balance of convenience."
Accordingly, in order to obtain interlocutory relief, the plaintiffs must be able to demonstrate:
1. A prima facie case or a serious question to be tried as to their entitlement to the relief sought at the final hearing;
2. That damages would not be an adequate remedy; and
3. That the balance of convenience favours the grant of an injunction on an interlocutory basis.
Also, the Court has an overriding discretion as to whether to grant relief or not.
In relation to the question of a private nuisance, in order to be actionable, the interference by a party must be both unreasonable and substantial: Hargrave v Goldman [1963] HCA 56; (1963) 110 CLR 40 at 51‑53 and 61-62. In Malliate v Sharpe [2001] NSWSC 1057, Campbell JA stated the principles at paragraphs [39]-[44]. At [39] his Honour stated:
"The tort of private nuisance aims to protect an occupier's interest in the beneficial use of his or her land, and of his other interests in land. It occurs when activities of the defendant interfere to a greater extent than is reasonable with the plaintiff's use of his or her land."
In Michos v Council of the City of Botany Bay [2012] NSWSC 625, Slattery J in the New South Wales Supreme Court at paragraphs [56] to [60] set out the principles relating to nuisance. His Honour stated that nuisance is the unreasonable interference with the use and enjoyment of a person's land. Whether there has been unreasonable interference is an objective test and that is whether a person of ordinary habits and sensibilities, in the plaintiff's position and circumstances, would regard the interference with the enjoyment of the land as unreasonable in circumstances where some "reasonable give and take" is involved. His Honour referred to the traditional statement as saying an inconvenience must materially interfere with the ordinary comfort physically of human existence and not merely according to elegant or dainty modes and habits of living, but according to what is described as "plain and sober and simple notions" of the community.
On an interim basis, I am satisfied from the evidence before me that the first element is satisfied of a prima facie case or a serious question to be tried for the purposes of injunctive relief. The evidence both in the affidavit of Mr Eaton and his oral evidence shows that in the circumstances, the nature and quantum of the flashing lights and their colour and positioning would arguably, on an interim basis, be seen as being an unreasonable user. Whether that is held to be so at a final hearing is another matter.
Reliance was also placed by the plaintiffs on the presence of a bright set of lights. I am not satisfied on the evidence currently before me that the bright lights referred to, having regard to the alleged positioning, is an unreasonable user. It may be that supplementary evidence is needed if the plaintiffs wish to pursue that aspect of their claim rather than the flashing lights aspect of their claim.
The next question is whether damages would be an adequate remedy. Having regard to the evidence before me, in particular the impact upon the plaintiffs of the white and coloured flashing lights, and the effect on Mrs Eaton's health in the light of the medical reports, I am satisfied on an interim basis that damages would not be an adequate remedy. It is also the case that where a plaintiff has established that the defendant's activities constitute a nuisance, the prima facie remedy to which a plaintiff is entitled, in addition to damages, is an injunction to restrain the defendant from committing the nuisance in the future: Michos v Council of the City of Botany Bay [2012] NSWSC 625 at [68]. Accordingly, on an interim basis, I am satisfied that damages would not be an adequate remedy and that there is a basis for injunctive relief if the other matters are satisfied.
The next question is whether the balance of convenience favours the grant of an injunction on an interlocutory basis. There is no evidence before me which suggests or which indicates that the defendants need the lights either with their flashing or of the quantum described for the purposes of any reasonable user of their property. The fact the lights have been increased to include colour lights suggests that they are not directed to a commercial purpose. It is difficult to see a reasonable private purpose, particularly having regard to the timing of the placement of the lights. The placement does not appear to be connected with festive activities.
I take into account that the turning off of the flashing lights would not, on its face, appear to create inconvenience to the defendants. I take into account the effect on the plaintiffs and particularly Mrs Eaton of the lights as described.
The next question is whether, in the light of being satisfied of the previous factors, there are discretionary reasons not to give the orders sought. I note that the lights have been erected for some considerable time. There is a question whether delay, which equity always frowns upon, is a basis for refusing the remedy. On that, I take into account the increasing placement of the lights including in December 2021, according to Mr Eaton's evidence.
I also take into account the medical reports, including the most recent which is in October 2021. I take into account the fact that paragraph 17 of Mr Eaton's affidavit refers to lights being placed, perhaps inconsistently, on 7 December 2021. I also take into account the evidence of Mr Eaton that Mrs Eaton's emotional position has disintegrated including with her apparently on 16 December 2021 engaging in activities which, whether deliberately or accidentally, constituted harm to herself. Taking all those matters into account, in my opinion, it is appropriate to give the injunctive relief in an appropriate form.
I do not consider that for the purposes of interlocutory relief paragraph 5 in the Notice of Motion is appropriately drawn.
Accordingly, injunctive relief should be given directed at the flashing lights as referred to in the evidence of Mr Eaton. A form of orders will be prepared by the Court for that purpose.
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Decision last updated: 08 February 2022