Gee v Burger [2009] NSWSC 149 | Case summary

constant surveillance amounts to an unnecessary intrusion [presumably, infringement] of the privacy of the persons who will use the gate, i.e. the Plaintiffs and their invitees. 14 It is further asserted in the pleading (paragraph 17.7) that the gate, if erected, will constitute a nuisance. 15 It should at the outset be observed that the present evidence regarding the manner by which, and the land over which, the alleged right of way was created is most confusing. 16 Indeed, until after the conclusion of the hearing, and only at my request, legible copies of the various memoranda of transfer relied upon by the Plaintiffs as constituting the instruments creating the right of way were provided. The copies of these documents which had originally been part of the evidence relied upon by the Plaintiffs at the hearing were almost totally unreadable. 17 The factual background to the present proceedings and the procedural history, as well as the various communications between the solicitors for the respective parties, appear from the tender bundle provided by the Plaintiffs (Exhibit A in the hearing before me). 18 It was the submission of the Plaintiffs that their present application to file the amended statement of claim has resulted from a letter from the solicitors for the First Defendant dated 7 December 2007 (Tab 9 in the tender bundle), as well as the conduct of the First Defendant regarding the video cameras which she has caused to be installed over the access road, and the conduct of the First Defendant and of her invitees in allowing, or causing, the access of some of the Plaintiffs over the access road to be unreasonably blocked. The foregoing letter, inter alia, disputed the entitlement of various of the Plaintiffs to enjoy, either in whole or in part, a right of way over the access road. 19 At the outset, it should be recognised that liberal use of the power to amend (in the instant case, to amend a pleading) is one of the hallmarks of the modern judicial system. Nevertheless, the Court will not grant leave for the amendment of a pleading where the amended pleading is itself liable to be struck out. 20 The principles regarding the striking out of a pleading, or the dismissal of proceedings, upon the ground that no reasonable cause of action is disclosed are well settled. (See General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125, especially the judgment of Barwick CJ.) The power of summarily striking out a pleading or dismissing a claim, or of summarily depriving a party of the opportunity of having a final hearing of the cause of action which it desires to propound, should be exercised with caution and only in the clearest of cases. Time and again Courts of the highest authority have cautioned against denying a party the opportunity to place his or her case before the court in the ordinary way and after taking advantage of the usual interlocutory measures. (See, for example, Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at 575, where Gaudron, McHugh, Gummow and Hayne JJ observed that contested issues should not be summarily decided except in the clearest cases; Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at 275; John Fairfax Publications v Hitchcock [2007] NSWCA 364; (2007) 70 NSWLR 484 at 487, 490, 527, 528-529.) 21 In exercising the discretionary power of the Court, provided by section 64 of the Civil Procedure Act 2005, and implied by rule 19.1 of the Uniform Civil Procedure Rules 2005 (to grant the leave to amend), as sought by the Plaintiffs, or by rule 14.28 (to strike out the pleading) and rule 13.4 (to dismiss the proceedings), as sought by the First Defendant, it is necessary only that the Court be satisfied that the claim of the Plaintiffs is arguable. It is not necessary that a party in the position of the present Plaintiffs establish that at a final hearing the party will undoubtedly succeed in its claim. 22 The granting of the leave to amend sought by the Plaintiffs is opposed by the First Defendant, upon the following grounds (upon which grounds the First Defendant also relies in support of her motion that the pleading be struck out): a) The claim in prayer 1 in the amended statement of claim is hopeless, embarrassing, and supported by no available cause of action on the pleaded facts.

the court may order that the proceedings be dismissed generally or in relation to that claim 26 In dealing with an application for the striking out of a pleading (as is sought by the Defendants in their notice of motion of 20 March 2008), the Court should proceed upon the basis that the allegations of fact made in the pleading can ultimately be established at a final hearing. That is, an application such as the present is not an appropriate vehicle for deciding any disputed questions of fact. 27 I have already made some observations concerning the instruments relied upon by the Plaintiffs as constituting the easement which grounds the rights asserted in the statement of claim and in the amended statement of claim. I consider that, for the purposes of the present application, it is appropriate that I should assume that the Plaintiffs will ultimately be able to establish that there is a right of way along at least part of the access road, which right of way burdens part of the land owned by the First Defendant, and also part of the land owned by one Jessie Noel Shaw (whom the Plaintiffs in their present application seek to join as the Eighth Defendant to the present proceedings). 28 It is conceded on behalf of the Defendants (paragraph 2.3 of the First Defendant's written submissions dated 20 March 2008) that there is no dispute that each of the owners of the land benefited by the right of way enjoys the rights arising pursuant to the easement as correctly construed according to law. 29 The First Defendant complains that there are inaccuracies in the title references that appear in the statement of claim regarding the land that constitutes the dominant tenement and the land that constitutes the servient tenement in respect to the easement. I consider that it is for the Plaintiffs to establish that the land asserted in the amended statement of claim to constitute the dominant tenement has the benefit of the right of way, and that the land asserted in the amended statement of claim to constitute the servient tenement has the burden of the right of way. To the extent that the First Defendant proposes to put in issue those matters, then that is a disputed question of fact which I consider should appropriately be decided at a final hearing. 30 The complaint of the First Defendant concerning prayer 1 in the amended statement of claim is that the Plaintiffs cannot obtain that relief (in the words of paragraph 3.1 of the foregoing submission on behalf of the First Defendant, prayer 1 is "doomed to failure"), for various reasons which are then set out in paragraph 3 of the submissions. The complaint is compendiously stated as being that the claim in prayer 1 is "hopeless, embarrassing, and supported by no available cause of action". 31 It is my understanding that, strictly, the prayers for relief in a statement of claim do not form part of the pleading. Further, that a Court of Equity is always entitled and empowered to mould the relief which it will grant in such a way as to recognise and enforce the rights which a plaintiff is able to establish. 32 The fact that the relief sought in a pleading appears, on its face, to go beyond the relief to which a plaintiff might ultimately be entitled if it establishes all the facts asserted in the body of the pleading does not necessarily defeat the entitlement of that plaintiff to some form of equitable relief. It may be, in the instant case, that the declaratory relief sought in prayer 1 would not be granted to the Plaintiffs for the reasons submitted by the First Defendant, being that an unlimited right of passage is inconsistent with the terms of the registered easement. Nevertheless, if the Plaintiffs are able to establish that the First Defendant has acted in a fashion that denies to the Plaintiffs the right of passage that is given to them by the registered easement, the form of prayer 1 will not preclude the Plaintiffs, if they can otherwise establish a cause of action, from being granted the appropriate relief. 33 I do not consider the complaint of the First Defendant, even if that complaint had substance, to be a ground for striking out the amended statement of claim or for refusing to grant leave to the Plaintiffs to file such an amended statement of claim. 34 In respect to the declaratory relief sought in prayer 1 (and also to a submission that no cause of action is disclosed on the pleaded facts), the First Defendant submits that the asserted "dominant tenement" is not congruent with the Plaintiffs' properties. 35 This complaint appears to arise from various consolidations of the lots owned by a number of the Plaintiffs, and that, in consequence of such consolidations, only parts of the land owned by five of the Plaintiffs have rights of ways appurtenant thereto; and from the fact that in the statement of claim those consolidated lots (in their respective totalities) are described as the dominant tenements, as opposed to only the relevant parts thereof being properly so described. 36 I am in agreement with the submission of the Plaintiffs in this regard that, first, if there has been some misdescription, that is a matter which the Plaintiffs must clarify by evidence. It is not a ground for the striking out of the pleading, let alone for the dismissal of the asserted cause of action. Further, that the extent of the enjoyment by those Plaintiffs of whatever rights they have in respect to the parts of their property which do not comprise the dominant tenement is a question of fact to be determined at a final hearing, in the light of the principles set out by Young J (as he then was) in Cavacourt Pty Limited v Durian (Holdings) Pty Limited [1998] NSWSC 787; (1998) 9 BPR 16,833 (whose application of those principles to the facts before him was, however, overturned by the Court of Appeal (Durian (Holdings) Pty Limited v Cavacourt Pty Limited [2000] NSWCA 28; (2000) 10 BPR 18,099)). 37 The First Defendant next complains that prayer 2 seeks declaratory relief concerning a hypothetical circumstance which is not threatened by any of the Defendants, and submits that that claim for relief is supported by no reasonable cause of action, and that it is for those reasons hopeless and embarrassing. 38 Whether or not he cause of action in respect of which the Plaintiffs seek declaratory relief relates to a hypothetical circumstance is a matter which must be determined by appropriate evidence at a final hearing. There is certainly evidence presently available, and relied upon by the Plaintiffs, that from shortly after the time when she purchased 1 The Bulwark, the First Defendant has harboured the intention to extinguish the right of way, or to interfere with or reduce the rights of the Plaintiffs in regard thereto. This emerges clearly from the First Defendant's letter of 4 March 2007 (Tab 2 in the tender bundle). The First Defendant then instituted proceedings 2025 of 2007, but ultimately discontinued those proceedings on 4 May 2007, and gave an undertaking not to obstruct the right of way, in the terms which she then proposed. Thereafter the First Defendant made an alternative proposal, the erection of a gate, with various electronic devices for the opening thereof being made available to persons having rights over the access road. 39 It is not necessary for me here to rehearse the various factual matters relied upon by the Plaintiffs (which are summarised in Part 6 of the Plaintiffs' written outline dated 10 April 2008). Suffice it to say, that I consider that the Plaintiffs are entitled to have determined at a final hearing the question of whether the circumstances upon which they base their claim are, indeed, hypothetical. 40 Even if the Plaintiffs are ultimately able to establish the factual matters which they assert in the amended statement of claim, the question may well arise as to whether the Plaintiffs are entitled to the declaratory relief sought by prayer 2 of the amended statement of claim. In that regard, I repeat what I have already stated, that a Court of Equity can always mould to the circumstances which the successful party has established the relief which it ultimately grants. 41 Regarding the declaratory relief sought by the Plaintiffs, which the First Defendant submits the Plaintiffs cannot ultimately succeed in obtaining, and upon which the First Defendant relies in support of her complaint concerning the form of the amended statement of claim and concerning the existence of any or all of the causes of action sought to be pleaded therein, it should be observed that section 75 of the Supreme Court Act 1970 provides, No proceedings shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby and the Court may make binding declarations of right whether any consequential relief is or could be claimed or not. 42 I would also, in regard to the granting of declaratory relief, refer to the decision of the Judicial Committee of the Privy Council in Rediffusion (Hong Kong) Limited v Attorney General [1970] AC 1136 at 1158 per Lord Diplock. (See, also, Meagher, Gummow and Lehane, Equity Doctrines and Remedies, 4th ed (2002), page 631, paragraph [19-120].) 43 I agree with the submission on behalf of the Plaintiffs that central to a resolution of the issue whether the First Defendant proposes to erect a gate or other obstruction across the access road, and whether such gate or obstruction would constitute a substantial interference with the Plaintiffs' rights is the credit of the First Defendant. It will be appreciated that, upon an application of the nature of that presently before me, seeking leave to amend the statement of claim, or seeking the striking out of the amended statement of claim, it is not possible for me even to consider any question of the credit of a party or of any other witness. 44 It is not necessary for me to express any concluded views concerning the submission that it would be a simple matter, if the First Defendant has no intention whatever of erecting a gate or other obstruction over the access road, for her to say so in unambiguous terms and to give an undertaking to that effect. But, in the absence of such a statement and such an undertaking, the Plaintiff should not be precluded, first, from testing the credibility of the First Defendant on this point, and then from establishing, from the First Defendant's own evidence, or otherwise, whether there is a likelihood that such a gate or obstruction, thus interfering with the rights of the Plaintiffs, will ultimately be constructed. 45 The nature of such a gate or obstruction, when established by evidence, will impact upon the extent of the interference, if any, with the rights of the Plaintiffs over the access road. 46 It will be appreciated that it is inappropriate in an application of the nature of that presently before the Court, to decide the application upon the basis of the various authorities that were relied upon by the First Defendant. Those authorities will have far greater significance at a final hearing. If I do not discuss the details of each of those decided cases referred to at Part 4 of the submissions of the First Defendant (most of which cases related to a final hearing after all the evidence in each case was before the Court), I do not thereby intend any disrespect towards the arguments or research of Counsel for the First Defendant. I here confine myself to saying that I have not disregarded those authorities, and that the Court should always bear in mind what Young J (as he then was) said in Denton v Phillpot (1990) NSWConvR 55,543 at 59,030, that "each case depends upon its own facts". 47 Whilst the Court will not grant declaratory relief based on a hypothetical or assumed state of facts (University of New South Wales v Moorehouse [1975] HCA 26; (1975) 133 CLR 1), nevertheless the actual facts in a case such as the present case can be determined only at a final hearing. It would be quite inappropriate for the Court on an interlocutory application to dismiss the proceedings or to strike out the pleading on the ground that the relief claimed by the Plaintiff was declaratory relief based on a hypothetical circumstance, when the Plaintiffs had been deprived of an opportunity of establishing the actual facts and circumstances. 48 The complaint of the First Defendant concerning prayer 3 in the amended statement of claim is that there is no cause of action evident in the draft pleading to support the Plaintiffs' claim for the declaration sought in prayer 3. 49 As I have already observed, that submission, even if correct, cannot result in the striking out of the pleading or of the dismissal of the proceedings. Whatever be the cause of action which, ultimately, the Plaintiffs can establish regarding the conduct of the First Defendant in using video or other cameras to create a record of the identity of persons and vehicles using the access road, the Court is entitled to mould to the circumstances of the proven case the relief to which that cause of action entitles the Plaintiffs. 50 The mere fact that the circumstances which the Plaintiffs may ultimately establish regarding the use of video or other cameras may not entitle them to declaratory relief of the nature sought in prayer 3 does not deprive the Plaintiffs, if they have otherwise established a cause of action, from being granted appropriate relief in respect to that cause of action. 51 The amended statement of claim asserts a cause of action in nuisance, grounded upon the conduct of the First Defendant relating to the use of video or other cameras. The First Defendant submitted that no such cause of action can arise, and relied upon the decision of the High Court of Australia in Victoria Park Racing and Recreation Grounds v Taylor [1937] HCA 45; (1937) 58 CLR 479. The First Defendant also relied upon Bathurst City Council v Saban (1985) 2 NSWLR 704, in which Young J (as he then was) reviewed the relevant authorities, which he said, at 706, have been consistent in holding that, at least in the ordinary case, there has been no tortious conduct involved in taking a photograph of someone else or of someone else's property without their consent. 52 I note, however, that in Raciti v Hughes (1995) 7 BPR 14,837 it was held by Young J that the positioning of a security camera to film a neighbouring backyard on an ongoing basis, together with lights installed for that purpose, constituted an actionable nuisance, but only in the particular circumstances of that case. 53 I also observe that in 2001 the High Court of Australia in Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63; (2001) 208 CLR 199 rejected the assumption that Victoria Park stands "for any proposition respecting the existence or otherwise of a tort identified as unjustified invasion of privacy" (at 249 per Gummow and Hayne JJ). It has been submitted on behalf of the Plaintiffs that in so doing the High Court opened the gateway for the recognition of a tort of invasion of privacy. Whether or not such a tort exists, it is, in the light of the decision of the High Court in Lenah Game Meats, certainly a matter which is arguable on the part of the Plaintiffs. (The dissenting judgment of Callinan J went far towards recognising "a new tort of intrusion of privacy", at 320-330. In Grosse v Purvis [2003] QDC 151 (16 June 2003) Senior Judge Skoien in the District Court of Queensland actually recognised an actionable right of an individual person to privacy (paragraph [442]). I also note the decision of the Supreme Court of Victoria in Giller v Procopets [2004] VSC 113, where Gillard J, at [187] - [189], considered that the law in Australia has not developed to a point where it recognises an action for breach of privacy.) 54 As Deane J observed in Mooregate Tobacco Co Limited v Philip Morris Limited [No 2] (1984) 156 CLR 414 at 444-445, the appropriate course in such circumstances is to look to the development and adaptation of recognised forms of action to meet new situations and circumstances. (His Honour referred to, for example, the adaptation of the traditional doctrine of passing-off to meet new circumstances of deceptive trading (at 445).) 55 A concluded view regarding the existence of such a cause of action for invasion of privacy is unnecessary for the determination of the present application. In repeating that such a cause of action is arguable, I am mindful of the tension between a claim to privacy by one person and the obligations or limitations that such a claim will impose upon other persons. 56 I do not consider that the assertion by the Plaintiffs of a cause of action in nuisance grounded upon the conduct of the First Defendant in respect to the use of video or other cameras on the access road is unarguable or is doomed to failure. Accordingly, I do not consider that the Plaintiffs should be deprived of the opportunity of arguing such a cause of action in the light of the facts which are ultimately established by admissible evidence at the final hearing. 57 In deciding the present application it is not necessary for me to be persuaded that the Plaintiffs will necessarily be successful either in establishing the various causes of action asserted in the amended statement of claim or in obtaining relief in the terms of the various prayers for relief appended to that pleading. But if I am satisfied that the claims of the Plaintiffs are hopeless and are doomed to failure, then the Plaintiffs should be denied the leave which they seek to amend the present pleading, and the causes of action asserted by the Plaintiffs should be dismissed. 58 However, I am far from being so satisfied. In my conclusion the claims of the Plaintiffs are not hopeless or doomed to failure. The Plaintiffs should have an opportunity to proceed to a final hearing; and, in the light of the facts that are established at such a hearing (including facts upon which the credit of the First Defendant may become of relevance), to argue the existence of the various causes of action asserted in the amended statement of claim and to make appropriate submissions concerning the nature of the relief which the Court should grant in order to recognise and protect such rights of the Plaintiffs as may be established. 59 I now proceed to consider other matters relied upon by the First Defendant in her opposition to the application of the Plaintiffs for leave to amend, and for leave to join an additional Defendant 60 The First Defendant complains concerning the joinder of Mrs Jessie Shaw as Eighth Defendant to the proceedings. It is properly pointed out on behalf of the Plaintiffs that neither the First Defendant nor her legal representatives act for Mrs Shaw. Mrs Shaw was served with a copy of the notice of motion and of the amended statement of claim and of the orders of the Court dated 7 March 2008 (which included an order "that if Mrs Jessie Noel Shaw or any defendant opposes any orders sought in that motion [the Plaintiffs' notice of motion dated 8 February 2008], they shall serve notice of such objection, an Outline of Submissions, any motion arising, and any evidence in support, by no later than 5pm on 20 March 2008" (Tab 11)). 61 Mrs Shaw has chosen not to take any active part in the present application. It would appear that the proposed joinder of Mrs Shaw (part of whose property constitutes part of the servient tenement) was in consequence of objection taken by the First Defendant to the absence of Mrs Shaw as a party to the proceedings. The First Defendant now opposes that joinder. I consider that the Plaintiffs should have leave to join Mrs Shaw as a defendant, since, as an owner of part of the servient tenement, she is an appropriate party to the proceedings. 62 It was a complaint of the First Defendant that various of the Plaintiffs lacked the appropriate standing which could, by any possible means, entitle them to the benefit of the right of way. It was submitted on behalf of the First Defendant that no relevant estate or interest in possession of the dominant tenement was in the amended statement of claim pleaded to be held by the Seventh Plaintiff, the Fourteenth Plaintiff, the Twenty-first Plaintiff or the Twenty-second Plaintiff. Those Plaintiffs, according to the submission of the First Defendant, are asserted only to be invitees. It was a complaint of the First Defendant that the relief sought in prayer 1 would grant to those Plaintiffs a right to invite and to authorise the use of the right of way that is not bestowed by the terms of the grant thereof, since, so it was argued, there is nothing in the terms of the grant that would vest mere invitees of the owners of the dominant tenement with the right to themselves invite or authorise the use of the right of way. 63 It must be recognised that the rights in respect to the easement are limited by the terms of the grant. In Westfield Management Pty Limited v Perpetual Trustee Company Limited [2007] HCA 45; (2007) 81 ALJR 1887, the High Court of Australia (constituted by Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) emphasised that it is wrong to look for the intention or contemplation of the parties to the grant of an easement outside what is manifested by the terms of the grant (page 1893, paragraph [35]). 64 In the instant case the terms of the grant incorporate the following words appearing in Schedule 8 to the Conveyancing Act 1919, "every person who is at any time entitled to an estate or interest in possession in the land". I am in agreement with the submission of the Plaintiffs that to construe those words as being limited to registered proprietors is an incorrect construction and an unwarranted limitation upon the terms of the grant. 65 The foregoing passage in Schedule 8 can embrace a wide variety of different persons and of different circumstances and situations. I am not persuaded that, as in the circumstances of the instant case, a spouse who is not a registered proprietor but is married to and resides with the registered proprietor, or the married child (and her spouse) of a registered proprietor who are living with the registered proprietor, are unarguably persons who do not fall within the description of "every person who is at any time entitled to an…. interest in possession in the land" contained in Schedule 8. (It was also pointed out on behalf of the Plaintiffs that spouses and other family members can have an equitable interest in property. See, for example, Re Finlayson [2002] FamCA 898; (2002) 174 FLR 165. 66 I am in agreement with the submission that the foregoing phrase is a term of wide intent. In Wheeler v Baldwin [1934] HCA 58; (1934) 52 CLR 609 Dixon J (as he then was), in dealing with the standing of a caveatrix who claimed an estate or interest in land and opposed the bringing of that land under the Real Property Act 1900, after a review of the basic principles relating to seisin of land concluded, at 633, that, a person in possession claiming inconsistently with the title of the owner of the first estate in possession has a locus standi to caveat, and that he is entitled to an issue as to the validity or sufficiency of the applicant's title. 67 Dixon J (at 633) quoted with approval the conclusion expressed in Holdsworth's History of English Law, 3rd ed (1925), Vol VII, pages 23-81, at pages 59-60, Thus the medieval principle that possession is ownership as against all the world except as against those who can show a better title, having been maintained in law of this period, remains part of our modern law. 68 Indeed, a person in adverse possession was considered by His Honour to have the standing to claim an estate or interest in the land sufficient to enable that person to lodge a caveat. Evatt J was in agreement with that view (at 635-636). 69 It is quite clear, consonant with the foregoing decision of the High Court of Australia in Wheeler v Baldwin, that the standing of the foregoing Plaintiffs, presently challenged by the First Defendant, to seek relief of the nature claimed in the amended statement of claim, or, indeed, to any relief, is a matter which can only be determined in the light of the evidence presented at the final hearing. The First Defendant has not established that those Plaintiffs should be summarily dismissed from the proceedings at this stage. 70 It was a further complaint of the First Defendant that the form of the amended statement of claim is prolix, argumentative, and contains not merely essential facts, but also assertions of law. 71 There would appear to be a degree of substance in the complaint of the prolixity. 72 Nevertheless, much of the prolixity emanates from the detailed particulars which have been appended to various allegations in the amended pleading. (See, for example, paragraph 9, to which are appended some three pages of particulars; and paragraph 10, to which also are appended some three pages of particulars.) 73 Whilst there may be some prolixity in the particulars furnished in the amended statement of claim, I am not persuaded that, for that reason alone, the proposed pleading, or any part thereof, should be struck out or should not be allowed to be filed. 74 I do not consider that the amended statement of claim can properly be characterised as being argumentative, or, at least, it cannot be regarded as being more argumentative than any pleading in respect to an asserted obstruction to a right of way might be so described. 75 I am not persuaded that, on account of any asserted contravention of rules 14.8 and 14.7 of the Uniform Civil Procedure Rules the pleading should not be allowed to be filed. 76 It follows, therefore, that I consider that the Plaintiffs have established an entitlement to the leave sought by them in their notice of motion filed on 8 February 2008, and that the First Defendant has not established an entitlement to the relief by way of the striking out of the amended statement of claim, which the First Defendant seeks in her notice of motion filed on 20 March 2008. 77 I have not heard argument as to costs. It was submitted on behalf of the Plaintiffs that it was appropriate that costs be dealt with in the light of my decision herein. 78 Accordingly, unless any party within seven days from the date hereof arranges with my Associate for the matter to be listed for argument as to costs, I make the following orders, 1. I make orders as sought in paragraphs 1, 2 and 3 in the notice of motion filed by the Plaintiffs on 8 February 2008.

Gee v Burger

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