Practice and procedure - Application to strike out all or part of statement of claim - Turns on own facts

First Defendant : Mr C P Stevenson & Mr B D Wylynko

Second Defendant : Mr C P Stevenson & Mr B D Wylynko

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552

Attorney General v PYA Quarries Ltd [1958] EWCA Civ 1; [1957] 2 QB 169

Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493

Bateman Bays Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247

Bland v Mosely [1572] EngR 478; (1610) 9 Co Rep 57

Boyce v Paddington Borough Council [1903] 1 Ch 109

Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410

Caltex Oil (Australia) Pty Ltd v Dredge "Willemstad" (1977) 136 CLR 259

Campbell v Metropolitan Borough of Paddington [1911] 1 KB 869

Chapman v Luminis Pty Ltd (No 5) [2001] FCA 1106

Cohen v City of Perth [2000] WASC 306

Esanda Finance Corporation Ltd v Peat Marwick Hungerfords [1994] SASC 4402; (1994) 61 SASR 424

Foli v Devonshire Club (1887) 3 TLR 706 (CD)

Foster v Prospect County Council [1999] NSWSC 191

Gartner v Kidman [1962] HCA 27; (1962) 108 CLR 12

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

Halsey v Esso Petroleum [1961] 2 All ER 145

Harkess v Woodhead [1950] SASR 54

Hospital Contribution Fund of Australia v Hunt (1983) 44 ALR 365

Inkhorn Pty Ltd v Herbert [2000] WASCA 333

Jingellic Minerals NL v Abigroup Ltd (1992) 7 WAR 566

John Pfeiffer Pty Ltd v Canny [1981] HCA 52; (1981) 148 CLR 218

Kent v Johnson (1972) 21 FLR 177

Kimberly Downs Pty Ltd v State of Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986

McBean v Wyllie (1902) 14 Man LR 135

Morris v Dominion Foundries & Steel Ltd [1947] 2 DLR 840

Owen v O'Connor [1963] SR (NSW) 105

Phillips v Britannia Hygienic Laundry Co [1923] 2 KB 832

Shop Distributive and Allied Employees Association v Minister for Industrial Affairs of the State of South Australia (1995) 183 CLR 552

Sovar v Henry Land Pty Ltd [1967] HCA 31; (1967) 116 CLR 397

Stockden v Minister for WA Government Railways, unreported; SCt of WA; Library No 940034; 1 February 1994

Wentworth v Woollahra MC (1982) 56 ALR 745

1 MASTER SANDERSON: This is the first defendant's application to strike out the plaintiff's statement of claim. The application is brought out of time and leave was required if it was to proceed. At the commencement of the hearing counsel for the plaintiff indicated he had no objection to leave being granted and I ordered accordingly. Subsequent to the making of this application the plaintiff filed a minute of amended statement of claim. Although the proposed amendments addressed some of the first defendant's concerns, objection was maintained to all, or at least substantial parts of the amended pleading. The matter proceeded on the basis that the first defendant objected to the plaintiff being granted leave to amend in terms of the minute.

2 Turning then to the minute of amended statement of claim (which I will refer to as the "minute"), par 1 identifies the first defendant. Importantly it is pleaded that the first defendant is the owner and developer of the Red Hill Quarry, Western Australia. By par 3 it is pleaded that the plaintiff is the freehold owner of a residential and farming property known as Teewana, Red Hill, Western Australia. Teewana is said to be located to the north-east and in close proximity to the Red Hill Quarry. By par 4 the plaintiff pleads that the Red Hill area is considered by the Environmental Protection Authority ("EPA") to be one of high scenic quality. It is situated in the Darling Range Regional Park. The plaintiff pleads that the EPA has categorised Red Hill as Public Sensitivity Level 1, which has the highest priority visual quality objective of "maximum retention". By par 5 it is pleaded that the Red Hill Quarry was constructed over a period of two to three years from 1996.

3 Paragraphs 6 through to 9 of the minute then plead the processes the first defendant followed in gaining environmental approval to develop the Red Hill Quarry. The plaintiff pleads that the first defendant's proposal to develop and operate the Red Hill Quarry (which is defined in par 6 of the statement of claim as "the Proposal") was referred to the EPA pursuant to s 38 of the Environmental Protection Act 1986. It is said that the first defendant submitted with the Proposal designs, plans and technical material which showed the site and the proposed major features of the quarry, including the quarry pit. It is said (by par 6.1) that the Proposal and the accompanying material stated that the major features of the quarry, including the pit, would be confined within an area the boundaries of which were shown in a subsequent Public Environmental Review. It is further said that as part of the Proposal, the first defendant "gave a commitment" that the quarry pit and related plant would not be visible either at ground level to properties situated to the north-east of land owned by the first defendant, or from outside land owned by the first defendant once bunding and screening vegetation had been established. By par 7 it is pleaded that the Public Environmental Review was prepared in or about September 1990 and contained the commitment as to visibility I have mentioned above.

4 By par 8 it is pleaded that on or about 5 December 1991 the second defendant published a statement pursuant to the Environmental Protection Act which allowed the first defendant to implement the Proposal. By par 9 it is said that it was a condition of the statement made by the second defendant that it should fulfil the commitments made in the Public Environmental Review, including the commitment as to the visibility of the quarry from adjoining land.

5 By par 10 and par 11 it is pleaded that the first defendant has not observed the commitment with respect to visibility and the quarry pit is visible from Teewana. As a consequence it is said that the plaintiff's enjoyment of Teewana and its value has been "seriously impaired". It is further pleaded that the fact the quarry can be seen from Teewana is "visual pollution" such as to constitute an actionable nuisance: par 12.

6 Paragraph 13 then contains a plea in the alternative. It is said that the first defendant owed the plaintiff a duty of care "to site the quarry pit in a location and in a manner which was not visible from Teewana". It is said that this duty arose for a number of reasons, including the first defendant's knowledge that if the pit was visible from Teewana the plaintiff's enjoyment of and the value of Teewana would be seriously impaired. Further, it is said that the duty arose because of the terms of the proposal and the Public Environmental Review. The plaintiff goes on to plead a breach of the duty (par 14) and to claim loss and damage as a consequence of that breach of duty (par 15). The plaintiff claims a range of relief, including a declaration that the first defendant has not complied with the conditions imposed by the second defendant for development of the quarry and an injunction restraining the first defendant from further developing the quarry pit.

7 The first defendant has a range of objections to the statement of claim. Broadly speaking, these objections can be broken down into two parts. First, there are certain objections to the form of the pleading which the first defendant says are embarrassing but which, it acknowledges, could be rectified by amendment. The second and more fundamental objection attacks the very basis of the plaintiff's pleaded case. First it is said that the plaintiff cannot, on the pleaded facts, establish standing to bring the action. Secondly, it is said that on the pleaded facts, no claim for nuisance can be made out. "Visual pollution" it is said, does not give a right of action at common law. Finally, it is said that on the pleaded facts no duty arises which could give the plaintiff a right to seek damages for negligence. The first defendant maintains that these defects are so fundamental that the action itself ought be struck out.

8 It is convenient to deal first with the more straightforward pleading points raised by the first defendant. Objection is taken to par 3 of the minute. It is said that the property Teewana is not sufficiently defined by the pleading. What the first defendant would have the plaintiff plead are the title particulars so that the first defendant knows exactly where Teewana is located in relation to the first defendant's quarry. I think the first defendant is entitled to this detail but I am satisfied in the circumstances any difficulty can be overcome by the provision of particulars. The plaintiff should provide particulars of the Teewana property, including full title particulars.

9 Also in relation to par 3 of the minute counsel took exception to the use of the word "now" in the third line - a paragraph reading, relevantly, "Teewana is now located to the north east ... (of) the Red Hill Quarry". I think the use of the word "now" refers to the fact that the quarry has been constructed and since its construction, Teewana lies to the north-east. In any event, this is a minor point and of no significance in the context of the action as a whole. I would not strike out the word "now".

10 Objection is taken to par 4. It is said that the classification of Red Hill by the EPA must be drawn from some public document. The first defendant says that the paragraph does not identify the document so as to allow the first defendant to check the veracity of the plaintiff's claim. Once again, this is a matter for particulars. The first defendant is entitled to know to what document or pronouncement by the EPA the plaintiff is referring. Particulars will suffice.

11 Objection is taken to par 6 of the minute. It is said that the reference to "the Proposal" and "designs, plans and technical material" is vague and imprecise. The first defendant wants to know what documents are being referred to, when they were drafted and when they were submitted to the EPA. The plaintiff's response is to say that they have pleaded as much detail as they presently have available. They know that a proposal was submitted but they do not have a copy of it and it will only be when discovery is given that they can be more precise. I accept the plaintiff's submission on this point. The first defendant must be aware of what proposal or proposals were submitted to the EPA prior to the development of the Red Hill Quarry. If there was only one proposal that can be identified in the defence and the plaintiff's plea with respect to its contents either admitted or denied. If more than one proposal was submitted, those multiple proposals can be detailed and once again what the plaintiff says was in the proposals can either be admitted or denied. I would accept that the pleading in its present form is less than ideal. But given the plaintiff's lack of access to information particularly within the hands of the first defendant, I am satisfied that par 6 is a proper pleading.

12 Objection is taken to par 11. It is said that the reference to the Red Hill Quarry becoming visible from Teewana as a consequence of which the plaintiff's enjoyment of Teewana and its value has been impaired, is vague. This is a matter for particulars. The plaintiff should state from which parts of Teewana the Red Hill Quarry is visible and how that has affected the plaintiff's enjoyment of the property. Further, particulars ought be provided of the diminution in value of the property. I appreciate that this latter point may require expert evidence and particulars may not immediately be available. But in time these particulars must be provided and the plaintiff should bear that in mind.

13 That deals then with the more mundane pleading points. It leaves the fundamental question as to whether or not the plaintiff can maintain the action.

14 First, there is the question of the plaintiff's standing to proceed. The first defendant says that the plaintiff has no greater interest in the first defendant abiding by any directions for the development of the Red Hill Quarry than any other member of the public. That being the case, he lacks standing to bring this action.

15 This complaint of the first defendant can be disposed of quickly. The standing of a party to bring proceedings was considered in some detail by the High Court in Onus v Alcoa of Australia [1981] HCA 50; (1982) 149 CLR 27 and by the Full Court of this Court in Ex parte Helena Valley-Boya Association (Inc); State Planning Commission and Beggs (1989) 2 WAR 422. The test is whether the applicant has a special interest in the subject matter of the action being an interest over and above that enjoyed by the public generally. Moreover, in Day v Pinglen Pty Ltd [1981] HCA 23; (1981) 148 CLR 289, the High Court held that an adjoining landowner who claimed that a building project would adversely affect the view of Sydney Harbour from her property, was sufficient impending detriment when taken with the threat of an unlawful act, to confer standing to seek an injunction. On any view of the matter the plaintiff's position is clearly arguable and I would not strike out the claim on that basis.

16 The first defendant then says that no right of action lies for interference with a view. It is submitted that the plaintiff's claim is not arguable and this would justify the action being struck out. A pleading summons is not the occasion for a comprehensive review of the authorities dealing with the question of whether a claim in nuisance can lie for visual pollution. It is enough to point out that there are a number of authorities which are consistent with such a right of action being available in certain circumstances. In Victoria Park Racing & Recreation Grounds Co Ltd v Taylor [1937] HCA 45; (1937) 58 CLR 479, Rich J said (at 500):

"It does not follow that because no precedent can be found a principle does not exist to support the plaintiff's right. Nuisance covers so wide a field that no general definition of nuisance has be attempted but only a classification of the various kinds of nuisance. Courts have always refrained from fettering themselves by definitions. 'Courts of equity consistently decline to lay down any rule, which shall limit their power and discretion as to the particular cases in which such injunctions shall be granted or withheld. And there is wisdom in this course; for it is impossible to foresee all the exigencies of society which may require their aid and assistance to protect rights, or redress wrongs. The jurisdiction of these courts, thus operating by way of special injunction, is manifestly indispensable for the purposes of social justice in a great variety of cases, and therefore should be fostered and upheld by a steady confidence' (Storey's Equity Jurisprudence, 1st Eng ed (1884) sec 959(b), p 625)."

17 Perhaps the most striking case where nuisance has been found to lie for what might be termed "visual pollution", is the English Court of Appeal decision of Thompson-Schwab v Costaki (1956) 1 All ER 652. The facts of the case taken from the headnote were as follows:

"Each of the plaintiffs occupied a dwelling-house as his residence together with his family in a good class residential street in London. In the same street a house (adjoining that of the first plaintiff and near to that of the second plaintiff) was used by the defendants for the purposes of prostitution, their practice being to solicit men in nearby streets and to bring the men to the house. The plaintiffs brought an action to restrain the defendants from using the house for the purposes of prostitution, and they obtained an interlocutory injunction restraining the defendants 'until after judgment in this action or until further order whether themselves or by their servants or agents or any of them or otherwise howsoever from using or causing or permitting to be used [the house] for the purposes of prostitution".

18 The appeal against the grant of the injunction was dismissed. In the course of his judgment Lord Evershed MR said (at 654):

"It is true that so far as the evidence in this case goes there is nothing about the activities of the two defendants which is shown to be unlawful in the sense of being illegal or criminal; but it does not follow at all that their activities should therefore be regarded as free from risk or possibility that they cause a nuisance, in the proper sense of that term, to a neighbour merely because they do not impinge on the senses - for example, the nose or the ear - as would the emanation of smells or fumes or noises. The test which I adopt for the purposes of this appeal is that which I have stated, viz, whether what is being done interferes with the plaintiff in the comfortable and convenience enjoyment of his land, regard being had, to borrow Lord Wright's language, to the usages in this matter of civilised society, and regard being also had to the character, as proved, of the neighbourhood."

19 As the report makes clear, the objection taken by the plaintiffs was to the fact that the prostitutes went into and out of the adjoining property with their customers. In other words, the nuisance was entirely visual. That was enough to justify the grant of an injunction. Of course, being an appeal which dealt with the grant of an interlocutory injunction, the case itself could not be regarded as determining that an action would lie in nuisance for visual pollution. However, the report makes clear that the appeal was mounted on the basis that the defendants said that on the facts, no action in nuisance could lie. The Judge at first instance and the Court of Appeal found it could. In my view, on this authority alone, the plaintiff's claim is arguable and ought not be struck out.

20 It is the case that there is no direct authority which supports the plaintiffs proposition. As I have said, the decision in Thompson-Schwab can be read as saying no more than a right of action and nuisance may lie for visual pollution. Furthermore, it may be that the decision in Thompson-Schwab can be explained by saying that the various Judges were anxious to put an end to the salacious activities in the adjoining property. Against that, the decision is cited with apparent approval by Lord Goff in Hunter v Canary Wharf Ltd (1997) AC 655 at 685 - 686. There is some further support for the proposition advanced by the plaintiff to be found in the judgment of Fox J in Kent v James Kavenagh, Minister of State for Works (1973) 1 ACTR 43 at 52 - 53.

21 Furthermore, as counsel for the plaintiff quite rightly pointed out, caution must be exercised in an area such as this not to stifle the development of the law. The Full Court of this Court made that point in Bridgetown/Greenbushes Friends of the Forest Inc v Executive Director of the Department of Conservation & Land Management (1997) 18 WAR 126 per Templeman J at 189. That is a further reason why the plaintiff's claim in nuisance ought not be struck out.

22 Finally, there is the question of the plaintiff's claim in negligence. The plaintiff's claim is for purely economic loss. That being so, the question of whether sufficient proximity exists between the plaintiff and the first defendant, coupled with foreseeability of harm is sufficient to impose a duty of care to avoid that harm: see Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 per Gaudron J at 198 (par 27). In this case I agree with the plaintiff that the question of whether or not there is sufficient proximity between the plaintiff and the first defendant must await evidence at trial. For the purposes of this strike-out application, I am satisfied that the material facts pleaded are capable of supporting a sufficient relationship of proximity between the plaintiff and the first defendant to impose upon the first defendant the duty to avoid inflicting reasonably foreseeable economic loss. I would not strike out this aspect of the plaintiff's claim.

23 Accordingly I am satisfied that the first defendant's application ought be dismissed. The plaintiff should provide particulars as I have indicated above and I will hear the parties as to the precise form of orders with respect to those particulars. I will also hear the parties in relation to costs.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : ELWOOD -v- PIONEER CONCRETE (WA) PTY LTD & ANOR [2002] WASC 32 (S)

Practice and procedure - Supplementary reason for judgment - Turns on own facts

Environmental Protection Act 1986, s 47(1)

First Defendant : Mr C P Stevenson & Mr B D Wylynko

Second Defendant : Mr C P Stevenson & Mr B D Wylynko

1 MASTER SANDERSON: On 7 March I published reasons and dismissed the first defendant's application to strike out the plaintiff's amended statement of claim. Subsequent to publication of those reasons the first defendant drew my attention to complaints it had made to par 10 and par 11 of the statement of claim in which, it said, had not been directly addressed in the reasons. I accept that I dealt only obliquely with this issue in the reasons (at par 11 and par 12) and these supplementary reasons are designed to deal directly with the issue raised by the second defendant.

2 Paragraph 10 and par 11 of the statement to claim read as follows:

"9 Legislation will demonstrate an intention to protect or benefit a particular class of persons if the nature, scope and terms of the statute, including the nature of the evil against which the statute is directed, the nature of the conduct prescribed, the pre-existing state of the law, and generally the range of circumstances relevant upon a question of statutory interpretation evidence the intention to protect or benefit a particular class of persons: Sovar v Henry Lane Pty Ltd [1967] HCA 31; (1967) 116 CLR 397 at 405; Chapman v Luminis Pty Ltd (No 5) [2001] FCA 1106 at para 683.

10 On its proper construction there is no intention that s 47(1) of the Environmental Protection Act 1986 is to protect or benefit a particular class of persons rather than the public at large."

3 The second defendant says that s 47(1) does not, on its proper interpretation, confer on the plaintiff a right to proceed for breach of statutory duty. That being the case, it is said that the two paragraphs cannot stand.

4 Section 47(1) of the Environmental Protection Act is in the following terms:

"A proponent on whom a statement has been served under section 45(5) and who does not ensure that any implementation of the proposal to which the statement relates is carried out in accordance with any conditions and procedures set out in the statement commits an offence."

5 The first defendant admits, at least for the purposes of the strike-out application, that the Environmental Protection Act imposes a statutory duty on the first defendant. However, it is said that the section does not provide a private right of action for breach of the subsection. It is said that an implicit private right of action for breach of statutory duty exists when either the legislation demonstrates an intention that the statutory duty is to protect or benefit a particular class of persons, as well as protect or benefit the public generally, or when the statutory duty reflects an underlying common law cause of action. A number of cases were cited to support these propositions, including, and perhaps most importantly, Chapman v Luminis Pty Ltd (No 5) (2001) FCA 1106 and Sovar v Henry Lane Pty Ltd [1967] HCA 31; (1967) 116 CLR 397 per Kitto J at 405.

6 I think the answer to the second defendant's complaint lies in examination of the ratio in Onus & Anor v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27. The facts of that case, as taken from the headnote, were as follows:

"Section 21 of the Archaeological and Aboriginal Relics Preservation Act 1972 (Vict) provided that a person who wilfully or negligently defaced or damaged or otherwise interfered with the relic or carried out an act likely to endanger a relic should be guilty of an offence. The terms 'archaeological relic' and 'relic' were defined by s 2 to include a relic pertaining to the past occupation by the Aboriginal people of any part of Australia, whether or not the relic existed prior to the occupation of that part of Australia by people of European descent, and without affecting the generality of the foregoing, included any Aboriginal deposit, carving, drawing, skeletal remains and anything belonging to the total body of material relating to that past Aboriginal occupation of Australia, but not a body or remains of a body interred in a cemetery, burial ground or place of burial after the year 1834, or a handiwork made for the purposes of sale.

Persons who claim to be descendants and members of the Gournditch-jmara aboriginal people and custodians of the relics of those people according to their laws and customs which relics were of cultural and spiritual importance to them, held to have standing to commence an action to restrain another citizen from contravening s 21 of the Archaeological and Aboriginal Relics Preservation Act 1972."

7 It can be seen immediately that s 21 of the Act was designed to protect the cultural heritage of the Australian nation, not just of particular Aboriginal people. However, it is also clear that Aboriginal people who were direct descendants of those people who previously occupied the land, had a heightened interest in the protection of the relics. In the same way the plaintiff, whose land is adjacent to the Red Hill Quarry, has a heightened interest in protecting the environment and ensuring that the conditions accompanying the approval given by the first defendant were met.

8 All members of the High Court in Onus were satisfied that the plaintiffs had standing to bring an action. Brennan J stated the principle in this way (at 73):

"A special interest in the subject matter of an action being neither a legal nor equitable right, nor a proprietary or pecuniary interest, will ordinarily be found to arise from modern legislation enacted to protect or enhance non-material interests - interests in the environment, in historical heritage, in culture. Where such a statute imposes a public duty to protect or enhance a non-material interest a breach of the duty is apt to affect a non-material interest, and it would be vain to search for a proprietary or pecuniary damage suffered by a plaintiff. A plaintiff in such a case, though he may be able to show a special interest in what the statute seeks to protect or enhance, would be unable to show a private right or to prove that he has suffered proprietary or pecuniary damage. To deny standing would deny to an important category of modern public statutory duties an effective procedure for curial enforcement."

9 That, I think, deals with the second defendant's complaint. Moreover, it is worth noting that Gibbs CJ, in his judgment, doubted the wisdom of attempting to make a determination as to standing at an early stage of the proceedings. His Honour said (at 38):

"It is unfortunate that the question of the appellant's standing was determined as a preliminary issue in the present case, particularly on such scanty material. To say that is of course, no criticism of the learned primary judge who had to deal with Alcoa's application. The question whether a plaintiff has standing to bring an action is one that logically arises before the question whether he is entitled to succeed in the action. However, as I pointed out in Robinson v West Australian Museum, the court has a discretion whether or not it should determine the question whether the plaintiff has a sufficient interest to bring the proceedings before it proceeds to determine the merits of the case."

10 In my view, it is appropriate in this matter to allow the pleading to stand and to allow the plaintiff to raise the question of a breach of statutory duty at trial.