Grant v Brewarrina Shire Council [2003] NSWLEC 54 | Case summary

6 March 2003 Walter Alfred Grant Applicant v Brewarrina Shire Council Respondent JUDGMENT [No.2] Introduction 1 The respondent, Brewarrina Shire Council ("the council"), relying upon a purported order served on the applicant, Walter Alfred Grant, under s 121B of the Environmental Planning and Assessment 1979 ("the EP&A Act"), which notice was invalid, had entered the applicant's land and unlawfully demolished a stable complex thereon, in purported reliance on its powers under s 121ZJ of the EP&A Act. Further to my previous judgment of 11 November 2002 (Grant v Brewarrina Shire Council [2003] NSWLEC 41) the only outstanding issue is whether any damages should be awarded to the applicant and, if so, how much. Evidence 2 The most probative evidence is found in the affidavits and oral testimony of Messrs W A Grant, T J Vollmer, C W Washbrook, R Walters and R L Murray. The key points of these will be summarised in turn. Mr W A Grant 3 Mr W A Grant, the applicant, is the owner of lot 22 in the deposited plan 227232 Culgoa Street, Brewarrina (hereinafter "the property"). Following his purchase of the land in about 1976, he erected on the property a stable complex consisting of eight stables, a grain storage area, a sand roll, hosing bay, feed and tack room and three exercise yards. These were used by him to carry on the training of horses. 4 On or about 29 February 2000 the council entered the applicant's property and unlawfully demolished all improvements on the land, leaving the applicant with a vacant block of land. Further to this action, Mr Grant received an invoice from the council dated 30 June 2000 for the sum of $3,764.38 for the clean-up of the property, followed by a letter of demand therefor. 5 Mr Grant gave oral evidence to the effect that the demolition of his stables "put [him] in wonderland", that he now had no chance of training horses at Brewarrina, despite conceding that in approximately the last ten years he has only used the property for this purpose "spasmodically". He has a modern stable complex adjacent to the Parkes racecourse. Prior to an accident in February 1998, he ran eight horses in this establishment. Since the accident Mr Grant has been "steadily plucking [his] way back from that". 6 In Mr Grant's oral evidence he said that he had suffered a fall from a horse in February 1998, at which time he had eight horses in his Parkes stable. Following this accident he has only had "a couple of horses, like one, and two perhaps". By the time the applicant had written the letter dated 13 September 1999, to which reference is made below, he only had a "couple of" horses at Parkes. As at 11 November 2002 Mr Grant only had two horses working, with a third possibly about to start. 7 Mr Grant has been living in Parkes since 1991, deriving an income from a disability pension since the "late eighties, early nineties". The fact that "there was no income" explains the absence of tax returns prepared for the years ending 30 June 1997, 30 June 1998, 30 June 1999, 30 June 2000 and 30 June 2001. 8 Mr Grant stated that he can "facilitate much better" in Brewarrina than in Parkes. Further, he has his mother and a brother still in Brewarrina. However, Mr Grant conceded that he now has children living in Parkes, his daughter being employed in the area, and his son, of necessity, living with him and his wife there. 9 Prior to any notices of intention to give an order under s 121B of the EP&A Act being issued by the council, in a signed letter written to the council dated 13 September 1999, it appears that Mr Grant was prepared to give the council the land in lieu of "any unpaid rates [approximately $2,000.00] and associated clearing". Regardless of this indication of the property's value to Mr Grant, he relies upon a quote for the sum of $126, 566.00 prepared by Mr H A Clarke, as evidence of the cost of rebuilding the stable complex to provide one comparable to that demolished. 10 When asked about the deteriorated state of the stable complex on the property immediately prior to the demolition undertaken by the council, Mr Grant replied that it was "completely serviceable" and that the photographer had done "a lot of work" before the photographs in evidence (Exhibit 3) were taken. That is, that "sheets of iron…couldn't possibly come off on its own". He also stated that he thought the photographs were taken "just prior to demolition", whilst however, conceding that he had not been to the property for approximately six months before the September 1999 events. He also conceded that he sold his Brewarrina house about the time he moved to Parkes in 1991. 11 Upon being challenged as to the make-up of the original floor of the stables, Mr Grant stated that they had concrete floors: "the yard, the path at the front, the yards - the horse yards and the stables inside and the full length of it". Further, when Mr Williams showed the photographs of the buildings and suggested that their dilapidated and deteriorated state was acquired over many years, Mr Grant stated that alone the stables could not have deteriorated to the level depicted in the photographs. 12 In the seven months following Mr Grant's receipt of the invoice for the costs of the clean-up dated 30 June 2000, his only protest was to write letters to the council dated 22 September 2000 and 29 January 2001 stating that he had not received any official notice about the clean-up of the property. That is, he was only contesting liability to pay the cost of the clean-up, not objecting to the fact that council had demolished his stable complex which he was intending to use. 13 During re-examination, Mr Grant claimed he had suffered hypertension and depression during the period in which he wrote the letter dated 13 September 1999 to the council offering the property in lieu of unpaid rates and associated clearing. 14 Mr Grant conceded that he had no consent for the erection of the stable complex on his property. Mr T J Vollmer 15 Mr T J Vollmer was at the relevant time the respondent's Health and Building Surveyor. Upon inspecting the property on the 25 August 1999, he observed the encroachment of the stables buildings on lot 22 upon the adjoining lots being lot 9 and lot 21 in deposited plan 227232. Mr Vollmer states in his affidavit that the stable complex erected on the applicant's property was in such a dilapidated condition as to be prejudicial to persons and property in the neighbourhood. The stables were in an "advanced state of disrepair" with sheets of corrugated iron either missing altogether or hanging precariously from the roof. Importantly, there was no evidence of habitation or use of the stable complex on the applicant's property. 16 Mr Vollmer says that on 10 September 1999, the applicant telephoned him requesting clarification of the works which the council required to be carried out on the property. After explaining that the northern boundary fence needed to be replaced, and that the shed needed to be modified so as to rectify the encroachment, Mr Vollmer stated that in its "current condition the property is unsafe and work needs to be carried out to rectify the problems so as to render the property safe". In reply to this, the applicant explained to Mr Vollmer that he was a pensioner and could not afford to carry out the work. The applicant then told Mr Vollmer that the "property was valueless" and that he would like to hand back the property to council for the value of its unpaid rates. 17 Mr Vollmer states that it was "apparent from the state and condition of the property that the complex had not been used for any reason at all for a considerable period of time". 18 In a supplementary affidavit Mr Vollmer states that as the town planning officer for the respondent he "did not believe, had the stable complex not been demolished, that its continued existence plus use for permanent, intermittent or casual training of horses could reasonably have been expected to have been allowed." The development did not comply with the definition of "existing use" as set out in s 106 of the EP&A Act because development consent had never been granted for the original use. 19 During his oral testimony Mr Vollmer stated that the council removed everything on the property, conceding that this was contrary to the council's orders. However, he later said that there is no evidence of the council having ever granted consent for such stable structures as council records date back to 1955. 20 Later, Mr Vollmer admitted that the stable complex was such that if one set their mind to it, it could have been restored to working order. However, it was his opinion that it would have been more economical to demolish and rebuild the structures. Mr C W Washbrook 21 Mr C W Washbrook was at the relevant time the co-registered proprietor of lot 20 in deposited plan 27232 Culgoa Road, Brewarrina, which adjoins the applicant's property. He observed that all improvements on the property were "constructed with what appeared to be second hand materials and were in an advanced state of disrepair. Iron was constantly being blown off the stables by the wind and landing in my yard". He further observed that the structures on the property were in a dilapidated and dangerous condition. 22 In his affidavit Mr Washbrook states that Mr Grant, in a telephone conversation on or about the second week in September 1999, offered him the property if he paid the outstanding charges owed by Mr Grant to the council. Mr Washbrook offered $1,000.00, considering the mess the applicant's property was in. However, this amount was unacceptable to Mr Grant. Mr Grant then told him he did not wish to do anything with the property apart from getting his brother Mr Ray Grant to recover any worthwhile materials. Mr Grant then advised Mr Washbrook that "he could do what he wanted with the block after that." This event was restated in Mr Washbrook's oral evidence, in which he stated that Mr Grant asked for $5,000.00 for the property. 23 Mr Washbrook's oral testimony revealed that he lived next door to Mr Grant for approximately three years until October 2001. He states that in that period of time he had never seen Mr Grant on the property. Further, during this period Mr Washbrook testifies that there was only one occasion in which he saw horses at the property. In fact, it was only one horse, in the possession of a person known as "Florrie", Mr Grant's partner. Florrie only had the horse at the property for a period of six months. 24 A set of twelve photographs annexed to Mr Washbrook's supplementary affidavit were taken by him on or about 10 February 1999. This action coincided with his complaint to the council about the structures' condition. Mr Washbrook testifies that the structures were in little better condition in 1995, when he moved into the adjacent property. He states that the structures appeared to be made from second hand materials: "rusty iron like they were just second hand guttering… timber was rotted out". This condition of the materials seemed to be uniform as the pieces of tin "just didn't even fit together properly". 25 In reference to the sketch of the structures on the property identified as Annexure "A" to his initial affidavit, Mr Washbrook states that the concrete on the horse wash was "poorly done". Further, after removing concrete from the horse wash and the silo, Mr Washbrook did not find any more concrete, indeed the site was bare when the structures were removed. It may be inferred that there were no concrete floors observed by Mr Washbrook. Mr R Walters 26 Mr R Walters, the General Manager of the council, states in his affidavit that the local government area of the Brewarrina Shire council has a total population of approximately 2,200 people with a rate base of approximately $850,000. The area is currently suffering the effects of a severe drought which is having a detrimental impact upon the financial circumstances of ratepayers. He concedes, referring to the applicant's affidavit, that in the early 1980's he leased a horse as part of a syndicate with four others which horse was trained by Mr Grant until late 1984 or early 1985. He states that since that time the applicant has not trained any other horses for him. Mr R L Murray 27 Mr R L Murray, a certified practicing valuer, gave evidence on behalf of the respondent. Accordingly to Mr Murray's assessment, the market value of the applicant's land at present is $6,000.00. Mr Murray's estimate of the market value of the property, including land value and improvements thereon, immediately prior to the demolition works carried out by the council is $5,000.00. In Mr Murray's opinion the removal of the dilapidated structures from the land enhanced the market value of the property as it is reasonable to assume that a prospective purchaser of the land in September 1999 to February 2000 would have knowledge of the terms of the council's notices and orders and the need to demolish such improvements which were "illegal", "dilapidated" and "basically obsolete". Mr Murray does not consider the use of the property as horse stables and horse structures to be consistent with the "highest and best" use of the land as at 17 September 1999 and prior to and immediately after 29 February 2000 because the stable complex had been only used intermittently since about 1991 and prior to that, in any event, without development consent being obtained. Submissions 28 Mr A J J Thompson, appearing for the applicant, makes the following relevant submissions on damages. (i) It is clear that the council acted in a wanton and unjustifiable manner in acting upon what was then assumed to be a valid order. The demolition did not cease at removal of the buildings located on the north side of lot 22 which encroached slightly on the adjoining property, but extended to removal of the buildings on the south side which in no way can be justified by reliance on the order. (ii) Due to the illegality of the orders, the council acted unlawfully in demolishing the stables. (iii) Based on the evidence given by the council's employees that the demolition of the southern part of the stables was, to their knowledge, never justified, exemplary damages should be awarded to "punish and deter" the council for its abuse of power: Uren v John Fairfax & Sons Pty Limited (1965- 1966) 117 CLR 118 at 154. (iv) From Mr Grant's evidence in relation to the stables, it is apparent that even though they were not used full time and even though there was some evidence of disrepair, there is no reason for the Court to conclude other than that the stables were still usable; in fact they were used from time to time by Mr Grant, and that he has a genuine intention to consider returning to Brewarrina to train race horses again. (v) The cost of rebuilding the stable complex to provide one comparable to that demolished is $126,566.00. (vi) The affidavit of Mr R L Murray, does not assist the Court because the valuation carried out gives a before and after value of the land prior to and after 29 February 2000. Mr Murray did not value the stable complex. In a case involving the tortious damage to a building, the measure of damages cannot be the amount of diminution in value of the land and improvements: Evans v Balog & Anor (1976) 1 NSWLR 36 at 39F- 40E. (vii) The appropriate measure of damages for the stable complex is the cost of reinstatement. The respondent's attempt to argue enhancement of the value of the land because of the demolition was rejected by the Court in Balog at 40D. Mr Grant is entitled to be fairly compensated for the damage that he has sustained: Balog 39F. The only way he can be restored to that position is to reinstate the stables. (viii) Due to Mr Grant's evidence of his occasional use of the stable complex and of his intention to possibly return to Brewarrina to train racehorses, it is reasonable to award to him the cost of reinstatement of the stable complex: Fire & All Risks Insurance v Rousianos (1990) 19 NSWLR 57 at 67C; Balog at 40G. (ix) If the Court is not satisfied that it would be reasonable to order the reinstatement by the erection of a new stable complex, then the value of erecting new stables but depreciated to take account of an estimated 40 years building life (as allowed by the Australian Taxation office), would result in the following calculation from 2000 to 2016: 16/40 x $126,566.00 = $50,626.00: Minister of State for Navy v Rae (1945) 70 CLR 339 at 348. (x) Exemplary damages of $20,000.00 would act as a sufficient deterrent to local authorities which may be minded to ignore their responsibilities in exercising powers, especially when the limit of the power was known prior to the act being carried out. (xi) Vexation and inconvenience suffered by Mr Grant should be abated by the small additional sum of $2,500.00: Avenhouse v Hornsby Shire Council 104 LGERA 355 at 375. Campbelltown City Council & Ors v Mackay & Anor (1989) 15 NSWLR 501 per McHugh JA: for damage to property, the plaintiff is entitled to recover for personal damage which is the reasonably foreseeable result of the defendant's negligent damage to his property (at 511). (xii) The absence of approval for erection of the stables, could not be raised as a defence by the respondent as it does not create or add to the cause of the damage to the complex; the applicant does not have to rely on the unlawfulness of the stables to prove his case, which lies in negligence ( Mills v Baitis (1968) VR 583 at 587, 590-1); and any such breach of the planning or building laws does not disentitle the applicant from complaining of the respondent's neglect or default: Henwood v Municipal Tramways Trust (1938) 60 CLR 438 at 460; Mills at 590. 29 Mr D Williams, appearing for the respondent makes the following relevant submissions on damages. (i) Section 124 of the EP&A Act is a discretionary power. In all the circumstances of the case the Court ought not exercise its discretion to award damages to the applicant: Warringah Shire Council v Sedevcic [1987] 10 NSWLR 335; ACR Trading v Fat Sel Pty Limited [1987] 11 NSWLR 67. (ii) Mr Vollmer's evidence and the letter from the applicant confirms that lot 22 was of no value to Mr Grant and that he was prepared to hand it to council for the unpaid rates, also accepting that it ought to be cleared. (iii) The circumstances described would have warranted an order for demolition or removal of such buildings had the notices of intention and orders correctly described the work required pursuant to s 121B of the EP&A Act. Accordingly the Court ought to exercise its discretion in favour of the respondent and decline relief. In Mr Vollmer's affidavit the stables are described as "in such a dilapidated condition as to be prejudicial to persons and property" and it is further noted that they had been erected without council approval. This evidence is corroborated by other witnesses for the respondent. (iv) Mr Washbrook described all improvements as "in an advanced state of disrepair" and "in a dilapidated and dangerous condition" ; and further stated that, from his observation, the stable complex had not been used since July 1995. Mr Washbrook further gave evidence that the applicant advised him that he could have the subject property if he "paid the outstanding charges" . In addition he gave evidence the applicant told him "he did not wish to do anything with the block apart from getting his brother Ray Grant to recover any worthwhile materials." The applicant then advised him that he could do what he wanted with the property after that. (v) Mr Walters' affidavit states that the local government area Brewarrina Shire has a population of approximately 2,200 people with a rate base of approximately $850,000.00, and the current drought is having a detrimental impact on the financial circumstances of ratepayers. (vi) The applicant has suffered no property damage as a result of the respondent's actions. Mr Murray gave a market valuation for the land and improvements prior to the demolition of $5,000.00. This is less than the $6,000.00 valuation for the land and improvements remaining after the demolition works were carried out. This is due to the demolition and removal of the structures having enhanced the market value of the applicant's property. (vii) The applicant seems to be in retirement. In his evidence, Mr Grant described selling his Brewarrina home and moving to Parkes in 1991 where he resides with his wife and son, with his daughter also living and working in Parkes. There he built a new set of stables for training horses. This complex is far superior to the dilapidated and dangerous structures on his land at Brewarrina. Further, Mr Grant is a pensioner, having lodged no tax returns for the last few years, the injury to his vertebrae stopping him from training horses in Parkes and necessitating recent visits to the doctor. (viii) Only the diminished value should be awarded, if the Court considers any damages appropriate. The applicant had indicated in his discussions with Messrs Vollmer and Washbrook that he had no further use for the land and these conversations, supported by his letter to the council dated 13 September 1999, indicate that he wished to be rid of the land in return for payment of rates and the cost of the clean-up. (ix) If the Court accepts that the applicant does intend to rebuild the stables, the guiding principle in the choice between the two methods of assessing liability is the reasonableness of the applicant's desire to rebuild. The courts have decided that where the cost of repair is out of all proportion to the loss of market value, only the latter is awarded: Jones v Shire of Perth [1971] WAR 56 at 61. (x) The evidence clearly indicates that the applicant has no intention whatsoever of rebuilding the stables at Brewarrina as he has a perfectly good set of stables at Parkes. (xi) In any event, the stables cannot be rebuilt without the consent of the council. Mr Vollmer gave evidence that an application for development consent for the stables as contemplated by the applicant would be refused as the stables are in a residential area and would detract from the character and amenity of the area and would not comply with the zoning. (xii) The power to order exemplary damages is reserved for "exceptional" cases: Uren v John Fairfax & Sons [1966-7] 117 CLR at 120, 149. It ought not to be used to punish a small western Shire acting through officers seeking to carry out their duties in good faith. The applicant took almost two years to bring this claim seeking what would amount to a "bonus" arising from technical breaches in relation to notices of intention and orders. (xiii) Section 731 of the Local Government Act 1993 protects the council from a claim for damages when an act by council was done in good faith for the purposes of executing that or any other Act: Douglas v Bogan Shire Council (1994) 82 LGERA 305. Findings of fact 30 The evidence adduced in this case does not support the applicant's assertion of an intention to resume the training of horses in Brewarrina. The evidence suggests that the structures on the property were in a state of advanced disrepair for a long time before their demolition. Mr Grant has lived in Parkes with his immediate family since 1991. Parkes and the surrounding area has many more yearly race meetings than Brewarrina. He has a modern and functional stable complex in Parkes in which he is presently training just two horses. He has not lodged an income tax return for several years as there has been no taxable income from horse training for those years. 31 The applicant had never been observed at his property by Mr Washbrook in the entire period of Mr Washbrook's residency in the adjacent property, that is, from July 1995 to October 2001. Further, Mr Washbrook only ever saw one horse in the applicant's stable complex, which to his knowledge belonged to Florrie, Mr Grant's partner. This horse was there for approximately six months. Today, the applicant is a 64 year old invalid pensioner recovering from an injury to his vertebrae sustained in 1998, but still requiring recent medical attention. I am not satisfied, on this evidence, that the applicant had any real intention to resume horse training in Brewarrina. This is further confirmed by his offer in September 1999 to sell the land to Mr Washbrook for $5,000.00 and by his offer to sell the land to the council at about the same time for the amount owing for unpaid rates and the cost of clearing. The applicant's offers to sell the land to Mr Washbrook and to the council is understandable in the light of the evidence of Mr Murray, namely, that the land is worth much more with the derelict structures removed. All of this evidence suggests that the applicant did not and does not have any real intention to resume the training of horses using his stable complex at Brewarrina. Conclusions 32 As the evidence of Mr Walters demonstrates, the buildings on the applicant's land which the council unlawfully demolished were a liability. They did not add to the value of the land. They required either significant repairs or complete demolition. Their presence on the land depreciated the land value to $5,000.00 and their removal had the effect of increasing the land value to $6,000.00. I accept this evidence, which was uncontested. 33 The applicant himself seems to have regarded the land with the structures on it as a liability. This is illustrated by his offer to the council on 13 September 1999 to let the council have it for the amount of outstanding rates and the cost of clearing it up. His offer, also in September 1999, to sell the land to Mr Washbrook for a relatively nominal sum of $5,000.00 provided Mr Washbrook paid the outstanding charges suggests, at the very least, that he would be happy to dispose of the land rather than continue to incur further charges and expenses. 34 The land and the derelict structures thereon were of little or no value to the applicant. He did not use them. Such horse training activities which he carried on were extremely limited and were confined to his stable complex at Parkes, where he has lived since 1991. 35 I have found that the applicant had no real intention to return to Brewarrina and conduct horse training activities there. I find that the applicant wished to dispose of the land at Brewarrina in order to discharge his liability to the council for unpaid rates and to be relieved of having to clean up the property. He was prepared to dispose of the land for its land value or less in order to be relieved of those liabilities. The cost of repairing the structures was out of all proportion to the market value of those improvements. In fact, their market value was a negative, a liability. Apart from having no real intention of resuming horse training at Brewarrina, I am not satisfied of the reasonableness of any desire on the part of the applicant of repairing the structures in order to do so. 36 In these circumstances it does not seem to me that the applicant has suffered any loss or damage. As Lord Bridge of Harwich said in Hunt v Severs [1994] 2 AC 350 at 357: The starting point for any inquiry into the measure of damages which an injured plaintiff is entitled to recover is the recognition that damages in the tort of negligence are purely compensatory. He should recover from the tortfeasor no more and no less than he has lost. 37 Although Lord Bridge was speaking of the tort of negligence, there seems to be no reason why his comments do not apply equally to the tort of trespass, which is what occurred here. In the present case I have found that the applicant had no real intention of resuming his horse training activities in Brewarrina, which in turn could seem to require that he live there. I have found that in reality the applicant has lost nothing. The derelict buildings were a liability which, together with the land on which they stood, he was willing to dispose of for less than the land value. As Lord Bridge said in Hunt v Severs, the applicant is entitled to no more and no less than that which he has lost. Under these circumstances it does not seem to me that ordinary damages are recoverable. Exemplary Damages 38 It is possible for exemplary damages to be recovered for trespass to land: XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1985) 155 CLR 448; Gazzard v Hutchesson (1995) Aust Torts Reports 81- 337. Whatever the action, there must have been "conscious wrongdoing in contumelious disregard of another's rights" Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71 at 77 per Knox CJ. 39 Exemplary damages are awarded with the object of punishing, deterring and demonstrating the court's disapproval of such conduct: Lamb v Cotogno (1987) 164 CLR 1 at 9-10; Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71 at 81; 21 SR (NSW) 398; 27 ALR 249 per Isaacs J; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 122 per McTiernan J, at 130 per Taylor J. Therefore, they will not be awarded where they can serve no purpose in terms of punishment and deterrence. All of the circumstances of the case are relevant to the assessment of exemplary damages: Rookes v Barnard [1964] AC 1129 at 1228 per Lord Devlin, including the extent of any punishment which has already been inflicted on the defendant: Watts v Leitch [1973] Tas SR 16; McDonald v New South Wales BC9901790; [1990] NSWSC 350. 40 In any event, in determining the appropriate amount of exemplary damages the court must avoid the temptation to be extravagant: XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1985) 155 CLR 448 at 463 per Gibbs CJ. An additional sum by way of exemplary damages should be awarded when the compensatory damages (including aggravated compensatory damages) are insufficient to punish and deter or to serve any of the other purposes of such an award: Rookes v Barnard [1964] AC 1129 at 1227-8 (HL) per Lord Devlin. 41 In the present case the council has already suffered some punishment for its conduct in that it must cover its costs of demolishing the structures and clearing up the land, being $3,764.38. There is no need for any further deterrence. Moreover, the council had no reason to believe that the notice which it had served was invalid and had no reason to believe that it was acting unlawfully when it entered the applicant's land and demolished the buildings thereon. At no time before the council entered and demolished did the applicant question the validity of the notice. There was no "conscious wrongdoing in contumelious disregard of another's rights". This is not a case in which it is appropriate to order exemplary damages. Nominal Damages 42 Nominal Damages are awarded as a demonstrable mark or vindication of the plaintiff's rights in a situation in which the plaintiff cannot establish substantial loss: Baume v Commonwealth (1906) 4 CLR 97 at 116; 13 ALR 22 per Griffith CJ. In a tort actionable per se the defendant breaches the plaintiff's absolute rights: Plenty v Dillon (1991) 171 CLR 635 at 645 per Mason CJ, Brennan and Toohey JJ at 654-5 per Gaudron and McHugh JJ; Gazzard v Hutchesson (1995) Aust Torts Reports 81-337 at 62, 360. However, if the plaintiff fails to satisfy the court that substantial damage has been suffered, the plaintiff runs the risk of an award of nominal damages: Waters v Maynard (1924) SR (NSW) 618, or of no damages: Battiato v Lagana [1992] 2 Qd R 234. It is clear that in cases of action in tort, plaintiffs who fail to establish substantial loss run the risk of small but not nominal awards: Baume v Commonwealth (1906) 4 CLR 97 at 116-7; 13 ALR 22 per Griffith CJ. 43 A judgment for nominal damages means that the plaintiff has not suffered any loss or any real damage, but the giving of nominal damages affirms that there has been an infringement of a legal right. "'Nominal damages' is a technical phrase which means that you have negatived anything like real damage, but that you are affirming by your nominal damages that there is an infraction of a legal right which, though it gives you no right to any real damages at all, yet gives you a right to the verdict or judgment because your legal right has been infringed. But the term 'nominal damages' does not mean small damages" (Mediana (Owners) v Comet (Owners); The Mediana [1900] AC 113 at 116, per Lord Halsbury LC). 44 In the present case, the council acted unlawfully. In purporting to act pursuant to s 121ZJ of the EP&A Act when it did not have the power to do so, the council not only acted in breach of the Act, but it also committed the tort of trespass. As noted above, I am not satisfied that the applicant suffered any damages. On the contrary, the council appears to have done the applicant a favour. In all circumstances it is appropriate that there be an award of nominal damages as a mark of vindication of the applicant's rights in a case where the applicant cannot establish any real loss and as an affirmation that there has been an infringement of the applicant's legal right. The cases suggest, however, that nominal damages should be truly nominal and not contain any element of compensation. 45 I therefore make the following orders:

The respondent pay the applicant damages in the sum of one dollar ($1.00).
I reserve the question of costs.
The exhibits may be returned.

Grant v Brewarrina Shire Council

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Judgment (7 paragraphs)

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Cases Cited (14)

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