Jonah Pty Limited v Gold

Almeroth v W E Chivers & Sons Ltd [1948] 1 All ER 53 Bega Co-operative Society Limited v The Milk Authority Authority of the Australia Capital Territory 325 FC 39 Bruce v Odhams Press Ltd (1936) 1 KB 697 Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association of Western Australia (1987) 13 FCR 413 Commonwealth v Murray (1988) Aust Torts Reports 80-207 Contribution Fund of Australia v Hunt (1982) 44 ALR 365 CASES CITED : Fennell v Robson Excavations Pty Ltd [1977] 2 NSWLR 486 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Gibson v Parkes District Hospital (1991) 26 NSWLR 9 Griffith v ABC [No 1] [2007] NSWSC 711 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 Pinson v Lloyds and National Provincial Foreigh Bank Ltd (1941) 2 KB 72 Ratcliffe v Evans (1892) 2 QB 524 Young v Wheeler (1987) Aust Torts Reports 80-126

PARTIES : Jonah Pty Limited (Plaintiff) Suzanne Helen Gold (Defendant)

COUNSEL : Mr A P Lo Surdo (Plaintiff) Mr P W Bates (Defendant)

SOLICITORS : Kemp Strang (Plaintiff) Armstrong Legal (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

16374/2006 - JONAH PTY LIMITED v SUZANNE HELEN GOLD

JUDGMENT (Strike out statement of claim, nuisance, injurious falsehood) 1 HER HONOUR: This is an unusual case. There are two notices of motion before the Court. By notice of motion filed 25 October 2007, the defendant seeks firstly, an order that paragraphs 3 to 20, 21(5) and 21(6) and also that paragraphs 5 and 6 of the relief claimed of the amended statement of claim (ASC) be struck out; and secondly, if paragraphs 6, 8, 10, 12 and 13 of ASC are not struck out that the plaintiff is to furnish answers to the further and better particulars requested by the defendant in the letter from Messrs Armstrong Legal to Messrs Kemp Strang, dated 14 September 2007, within 14 days. 2 By notice of motion filed 16 November 2007, the plaintiff seeks an order that leave be granted to amend its ASC and leave to file a further amended statement of claim (FASC) (Ex A). The plaintiff is Jonah Pty Limited (Jonah). The defendant is Suzanne Helen Gold (Ms Gold). I shall refer to the parties by name. 3 Jonah conducts two businesses on its land at Palm Beach, a restaurant known as "Jonahs Restaurant and Accommodation" and "Jonahs Private". The defendant resided in Palm Beach and conducted a business known as "Rockbath Bed & Breakfast" on her land. 4 By amended statement of claim filed 20 June 2007 Jonah seeks (a) an injunction to restrain the continuance or repetition of a nuisance by which Ms Gold has unlawfully interfered with Jonah's use of its land at Palm Beach and damages arising from that nuisance; and (b) damages for injurious falsehood arising from the falsity of three representations namely, "Local Representations", the "Pittwater Council Representations" and the "LAB Representations". I shall refer to these in more detail later in my judgment. 5 Ms Gold has no objection to the filing of the proposed amended statement of claim except where the same vices appear in both the ASC and the FASC. The defendant contended that these deficiencies cannot be cured by amendment. So far as the disputed paragraphs of the proposed FASC are concerned there are two main areas in contention. They are firstly, whether for the tort of nuisance, the causation of damage is adequately pleaded; and secondly, whether the representations are properly pleaded.

Summary judgment and strike out defence 6 Rule 13.1(1) of the Uniform Civil Procedure Rules 2005 provides: 13.1(1) If, on application by the plaintiff in relation to the plaintiff's claim for relief or any part of the plaintiff's claim for relief: (a) there is evidence of the facts on which the claim or part of the claim is based, and

(b) there is evidence, given by the plaintiff or by some responsible person, that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part of the claim, or no defence except as to the amount of any damages claimed,

the court may give such judgment for the plaintiff, or make such order on the claim or that part of the claim, as the case requires." 7 Rule 13.4(1) of the Uniform Civil Procedure Rules provides that the court may dismiss proceedings generally, or in relation to any claim for relief, in three circumstances. These are if the proceedings are frivolous or vexatious, or no reasonable cause of action is disclosed, or the proceedings are an abuse of the process of the court. 8 Rule 14.28(1) of the Uniform Civil Procedure Rules provides that the Court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading firstly, discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; secondly, has a tendency to cause prejudice, embarrassment or delay in the proceedings; or thirdly, is otherwise an abuse of the process of the court. 9 Rule 14.28(2) provides that the court may receive evidence on the hearing of an application for an order under sub-rule (1). 10 In the well known passage in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, Barwick CJ at 129 stated: "It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the Court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense.'" 11 Master Allen (as he then was) in Contribution Fund of Australia v Hunt (1982) 44 ALR 365 at 373-374 said: "…It is not by any means rare in the history of the development of the common law that a high appellate court, in enunciating a novel development in the law, albeit one avowedly based on a miscellany of old cases, has chosen to use general words of imprecise limits in meaning to facilitate the arrival, in later cases, of the final form of the development without the need to overrule what earlier had been stated. That being so I am of opinion that a court at first instance should be particularly astute not to risk stifling that development of the law by summarily throwing out of court actions in respect of which there is a reasonable possibility that it will be found, in the development of the law, still embryonic, that a cause of action does lie. The risk of injustice to the plaintiff, which summary termination of his claim would entail, is real. One cannot predict, with firm assurance, what the future holds as the final formulation of the new development." 12 This passage was quoted with approval by Justice Badgery-Parker in Gibson v Parkes District Hospital (1991) 26 NSWLR 9 at 35.

The pleading in the proposed amended statement of claim 13 The particulars of nuisance are pleaded as follows: From in or about 18 March 2001 to the present time, the defendant has unreasonably interfered with the use and enjoyment by the plaintiff of the land and business and has, by that conduct, engaged in an actionable nuisance.

(i) On 18 March 2001, the defendant verbally assaulted Mr Peter Roelandt, a parking attendant employed by the plaintiff.

(ii) On 29 April 2001, the defendant, accompanied by a dog, attempted to prevent vehicles containing patrons of the business from entering the land.

(iii) On or about 15 August 2001, the defendant attended upon the front boundary of the land and verbally berated customers and staff of the business.

(iv) On or about 29 September 2001, the defendant attended upon the front boundary of the land and proceeded to take photographs of patrons and staff of the business and verbally informed them that they were "breaking the law" by entering upon the land patronising the business.

(v) On 10 June 2002, the defendant attended upon the boundary to the plaintiff's car park and proceeded to take photographs of Didier Suzor, a chef employed by the plaintiff.

(vi) On or about 25 February 2003, the defendant attended upon the boundary of the plaintiff's car park and proceeded to take photographs of cars parked on the plaintiff's premises.

(vii) On 6 February 2006, the defendant attended upon the boundary of the plaintiff's car park and proceeded to take photographs of cars parked on the plaintiff's premises and adjacent to the plaintiff's premises.

(viii) On 16 July 2006, the defendant entered upon the land and proceeded to take photographs of two employees of the plaintiff, Gina Karlin and George Francisco.

(ix) On 3 December 2006, the defendant intercepted a 40 seater bus operated by "Voyager Coaches" on Bynya Road near the business and carrying patrons bound for the business. The said patrons were guests at a wedding to be conducted on the land (at the business). The defendant blocked the bus and the traffic on Bynya Road with her vehicle by stopping her motor vehicle adjacent to the bus with the door open. As the passengers on the bus attempted to leave the bus, the defendant attempted to block the passengers from leaving the bus and proceeded to take photographs of the passengers, many of whom were elderly. As the passengers were alighting from the bus, the defendant loudly demanded that the passengers tell her their names and addresses. She further demanded that they tell her whether they were "from Jonah's". 14 While it is trite law, I remind myself of what is the purpose of a pleading and what should be contained in a pleading. A pleading is to contain, and contain only, a statement in a summary form of the material facts on which the applicant relies. The material facts are all those facts necessary for the purpose of formulating a complete cause of action - see Bruce v Odhams Press Ltd (1936) 1 KB 697 at p 712; Pinson v Lloyds and National Provincial Foreign Bank Ltd (1941) 2 KB 72 at 75; and Bega Co-operative Society Limited v The Milk Authority of the Australian Capital Territory 325 FC 39. Not only must all material facts be pleaded but they must be pleaded with a sufficient degree of specificity, having regard to the general subject-matter, to convey to the opposite party the case that party has to meet - see Ratcliffe v Evans (1892) 2 QB 524 at 532; Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association of Western Australia (1987) 13 FCR 413 at 417. A pleading must state the facts, that if not specifically pleaded might take the opposing party by surprise. 15 While the method of calculation of the plaintiff's damages may involve the examination of the patronage for the 1999 financial year, so far as the tort of nuisance is concerned it can only have occurred from 18 March 2001. The FASC should reflect this position. The plaintiff says that it will be obtaining further experts reports on the issue of damage. 16 Ms Gold submitted that the alleged damage is particularised as having being (i) a reduction of patronage prior to 18 March 2001 (the date of the first alleged tortious incident) as compared with 1 November 2007; and (ii) a reduction in gross revenue to the plaintiff from 18 March 2001. 17 The criticism of the claim for damages is that, Ms Gold says that a mere change of patronage, or of revenue, over a period of time, cannot establish a reasonably arguable causal nexus between the alleged tortious conduct and the alleged reduction in patronage or revenue and that there could be numerous possible explanations for a mere reduction in patronage or revenue, such as other competitors or changes in level of service. 18 The tort of nuisance has been defined as condition or activity which unduly interferes with the use or enjoyment of land (Clark & Lindsell on Torts, 19th ed at 1162). Damages are recoverable in nuisance for the annoyance, inconvenience and discomfort caused by an interference with the use and enjoyment of land which does not cause material physical damage [Commonwealth v Murray (1988) Aust Torts Reports 80-207]. A plaintiff is not, however, entitled to recover damages for a mere inconvenience until actual damage is caused [Young v Wheeler (1987) Aust Torts Reports 80-126 at 68, 971-2 per Wood J, NSWSC]. 19 As the learned author John G. Fleming stated in The Law of Torts, (8th ed at 419-420): "The gravity of the harm depends not only on the extent, but also the kind of injury. It may consist, on the one hand, in physical discomfort and inconvenience or, on the other, in actual damage to property or injury to health. While both may be equally serious, there is this practical difference between them, that it is appreciably easier to show substantial harm in the latter case, where the injury is more readily observed and measured and the damages are more easily ascertained." 20 The pleadings disclose the conduct that is said to constitute the nuisance. The ordinary principles of causation in tort are applicable to an action in nuisance [Almeroth v W E Chivers & Sons Ltd [1948] 1 All ER 53]. Causation is essentially a question of fact to be answered by reference to common sense and experience and one into which considerations of policy and value judgments necessarily enter [March v E & M H Stramare Pty Ltd (1991) 171 CLR 506]. Although a matter for trial, it will be sufficient for the plaintiff to show that a defendant's act was a cause, and need not be the sole cause of the nuisance for damages to be granted [Fennell v Robson Excavations Pty Ltd [1977] 2 NSWLR 486 at 492]. It is my view that the causation issue is arguable. It remains a matter for trial as to whether the Plaintiff is able to establish the connection between Ms Gold's conduct and alleged harm.

Injurious Falsehood 21 In Griffith v ABC [No 1] [2007] NSWSC 711, at [3] Kirby J set out the elements of injurious falsehood. They are:

"The elements of the tort of injurious falsehood are set out in Gatley on Libel and Slander (10th Ed) (2004) in these terms: (579)

"(1) the defendant published to third parties words which are false;

(2) that they refer to the claimant or his property or his business;

(4) that special damage has followed as a direct and natural result of their publication."

The three representations 22 The claims in relation to injurious falsehood relate to three representations namely, the "Local Representations", the "Pittwater Council Representations" and the "Liquor Administration Board Representations" ("LAB"). Paragraphs 6 to 9 of the FASC provide particulars in relation to the "Local Representations". Paragraphs 10 to 15 of the FASC provide particulars in relation to the "Pittwater Council Representations". Paragraphs 16 to 20 of the FASC provide particulars in relation to the "LAB Representations". 23 The defendant submitted that causation is not properly pleaded in the local representation. For the reasons given earlier, it is my view that causation is properly pleaded. The defendant further submitted that the second and third representations are not properly pleaded, in that they are "too rolled up". The plaintiff was not the prosecuting party in the second and third representations. 24 The FASC pleads that subsequent to the Pittwater Council Representations and as a result of them, Pittwater Council commenced Class 4 proceedings in the Land and Environment Court against Jonah. The proceedings, No. 41374 of 2005, were settled between Jonah and the Council on the basis that the proceedings be discontinued and an order that Jonah is lawfully entitled to existing outdoor dining area. Paragraphs 14 and 15 of the FASC plead that as a result of preparing and defending the Land and Environment Court proceedings Jonah suffered loss and damages by incurring significant legal costs and experts' fees. 25 The FASC also pleads that subsequent to some of the LAB Representations and as a consequence of them, the Liquor Administration Board summoned Jonah to appear at a number of Liquor Administration Board meetings. These meetings were held on 21 November 2006 and another in or about June 2007. Paragraph 20 of the FASC pleads that as a result of preparing for and attending these meetings and in engaging consultants to prepare two detailed operating noise plans to be submitted to the board, Jonah incurred costs. 26 In my view the pleadings in relation to the injurious falsehood claims as they currently appear in the FASC are adequate. The relevant facts that the plaintiff seeks to rely upon and the elements of the tort have been pleaded. It remains a matter for trial for Jonah to establish the requisite connection between the alleged representations of Ms Gold and the special damages suffered. 27 Leave is granted to the plaintiff to file and serve a further amended statement of claim by 12 January 2008. The defendant's notice of motion filed 25 October 2007 is dismissed. 28 Costs are reserved.

(1) Leave is granted to the plaintiff to file and serve a further amended statement of claim by 12 January 2008.

(2) The defendant's notice of motion filed 25 October 2007 is dismissed.

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