Medulla v Abdel Hameed

5035/02 MARIO MEDULLA & ANOR V MEDHAT ABDEL HAMEED & ANOR JUDGMENT (Ex tempore; revised 7 August 2003) 1 HIS HONOUR: In a statement of claim filed on 19 October 2002, the plaintiffs sought relief for trespass to their land at 3 Narelle Crescent, Greenacre. The Statement of the Claim alleged that, from about December 2001 to October 2002, the defendants had collected rubbish and refuse and placed it on the plaintiffs' property and, in particular, in the plaintiffs' swimming pool. Amongst other things, the Statement of Claim alleged that, by reason of that trespass, the plaintiffs suffered loss and damage, including consequential damages to goods on their property. 2 The Statement of Claim said the plaintiffs had, on repeated occasions, called on the defendants to cease the trespass but it continued, and the plaintiffs believed the defendants intended to continue the trespass. The Statement of Claim gave particulars of special damage in respect of the cost of removing the rubbish and garden refuse placed on their property, and the cost of repair or replacement of the pool filter motor. 3 There were also claims for recovery of damages for mental anguish and anxiety, for aggravated and exemplary damages, and for damages for economic loss on the basis that the defendants' conduct was alleged by the plaintiffs to have made it necessary to make arrangements to move from 3 Narelle Crescent. At the hearing today, those additional claims for damages were abandoned, and the only claims for damages relied upon were the damages of removing rubbish and garden refuse, and the cost of repair of the pool filter motor. 4 By their defence, the defendants denied having trespassed on the plaintiffs' land and specifically, they denied collecting rubbish and refuse and placing it on the plaintiffs' land and in the swimming pool. The defence then made allegations about harassment, voyeurism, verbal abuse and other conduct against the plaintiffs and contended that the defendants have suffered stress, anxiety and fear, and damage to their property. The defence said the defendants had made repeated attempts to resolve their dispute with the plaintiffs, but the harassment continued, and tree refuse from the plaintiffs' property continued to enter the defendants' property. 5 Paragraph 10 of the defence said that the defendants had on one occasion returned branches and leaves from the plaintiffs' trees back to the plaintiffs' land, with care, away from the swimming pool. The defence purported to give particulars of damages and concluded with claims for relief for damages and various kinds of injunctive orders. It appears to have been prepared without the aid of a lawyer. 6 As I explained to the second defendant, who appeared unrepresented in Court today, it is not appropriate to raise claims to substantive relief in a defence. If an application were made now for leave to file a cross-claim or, indeed, if an application had been made in a more timely fashion, I would have refused the application because the relief sought at the end of the defence would raise substantial factual matters, quite separate from the allegedly trespasses, although related to the overall intense and bitter neighbour dispute that seems to have emerged between the parties over time. I explained to the second defendant that if she wished to prosecute a claim for relief of the kind set out at the end of the defence, it would be necessary for her to take separate proceedings. In view of the fact that the plaintiffs are no longer the defendants' neighbours, presumably that claim would be for damages rather than specific relief, and would be brought in a lower Court. It follows that the matter for determination by me now is the plaintiffs' claim to relief in the statement of claim and not the various remedies asserted at the end of the defence. 7 The matter first came before the Court on 27 February 2003, at which time there was no appearance for the defendants. I was satisfied that the defendants had been properly served and I allowed the plaintiffs to enter into proof of their case, in the course of the duty list. On that day I adjourned the proceeding, part heard, for mention before me on 14 March for the purpose of fixing a time for continuation of the hearing. In the meantime, upon the plaintiffs by their counsel giving the usual undertaking as to damages, I made an order, until further order, in terms of paragraph 2 of the statement of claim. I directed the plaintiffs to notify the defendants of the adjournment, requiring that notification to make it clear that at the resumed hearing the plaintiffs would invite the Court to make final orders including an order for damages. 8 When the matter returned to me on 14 March 2003, the first defendant and his daughter appeared. The daughter told me that because of her father's limited facility in English, she wished to speak for him. After hearing what she had to say and hearing from counsel for the plaintiffs, I granted leave to the defendants to file a defence within a strict time limit, together with any supporting affidavits, and adjourned the proceeding to 1 May 2003. The defendants filed their defence and affidavits of the second defendant. When the matter returned to me on 1 May, I made an order setting it down for further hearing today. I directed the plaintiffs to file and serve evidence in reply to the defendants' affidavits on or before 21 May 2003. As the defendants did not appear on 1 May 2003 until effectively after the directions hearing had been completed, I directed the plaintiff to notify them of my orders. 9 At the hearing in March 2003, where there was an appearance for the defendants, I encouraged the parties to make further attempts to mediate their dispute and, in fact, as I shall explain, a mediation was held on 30 April 2003, but it was unsuccessful. 10 Today, when the hearing commenced, the defendants were not present, but the second defendant appeared in the Court about half an hour after the appointed time for commencement of the hearing, saying that she had been confused as to the hearing date. Later, the first defendant appeared in the Court. I granted leave to the defendants to file in Court and read parts of the second defendant's affidavit of 30 July 2003. Although they were unrepresented, I allowed them to read other evidence, making determinations as to what was and what was not relevant to the issue before me. I should add that large parts of the defendants' affidavits were judged by me to be irrelevant and rejected on that basis. The defendants' evidence included two videos, which were viewed by the Court.

(Judgment interrupted to permit the second defendant to cross-examine the first plaintiff.) 11 At this point I have interrupted my reasons for judgment because I overlooked (having regard to the irregular fashion in which today's hearing proceeded when the defendants were late) inviting the defendants to cross-examine Mr Medulla, who was just concluding his evidence when they arrived in the courtroom. I have now allowed that cross-examination to take place and given the parties the opportunity to make further submissions in light of it. I shall resume my reasons for judgment. 12 In my opinion, the plaintiffs have established, on the balance of probabilities, that there was a trespass to their land by one or more of the defendants on a frequent or continuing basis. I have reached my conclusions bearing in mind the indications in the defence and in submissions, and also some limited evidence, showing that there is a broad and bitter dispute between the parties on many issues, by no means confined to the question of tree litter and trespass. 13 I am satisfied that in 2001 the first plaintiff invited the second defendant, after she complained of leaves dropping on to the defendants' land, to gather the leaves and deposit them in the corner of the plaintiffs' land. However, as the overall dispute between the parties developed, she instead threw leaves and refuse on to the plaintiffs' property so that it fell into the plaintiffs' swimming pool. The material thrown into the swimming pool included leaves falling from the ghost maple in the bottom corner of the plaintiffs' land situated about two metres from the boundary fence and also litter from a spiky plant adjacent to the boundary fence closer to the swimming pool. 14 The defendants claim that leaves and refuse were thrown on to the plaintiffs' property only on one occasion and then clear of the pool. I do not accept this evidence. There is photographic evidence of the second defendant throwing material on to the plaintiffs' land in an area near the swimming pool on one occasion. There is also photographic evidence of leaves and litter in the swimming pool, and also dirt on the floor of the pool, as well as dirt in the pool filter. The first plaintiff's evidence, which I accept on this point, is that material on the floor of the pool included stones and lumps of clay. He said that some of this material was sucked up into the pool motor and caused damage. While the defendants deny that they threw dirt or stones into the pool, the second defendant informed the Court today that it was necessary for her to clean drains on the defendants' land, and after observing her in the witness box and assessing the evidence before me today, I have reached the conclusion that it is more likely than not that the dirt which was on the floor of the swimming pool was thrown over the fence from the defendants' land. 15 After the proceeding commenced, but before it came before the Court and before any injunctive order was made, the plaintiffs went on holiday in December 2002. At some time before they returned in late December, the defendants severely cut back the ghost maple tree and the spiky plant to which I have referred. The defendants' own evidence includes a video taken by the second defendant which shows the first defendant with a chain saw, standing at the top of the boundary fence and reaching down below the fence line on the plaintiffs' side to lop the spiky plant. The video also shows that the spiky plant did not, before it was cut down, protrude on to the defendants' land. The video also shows the first defendant standing at the top of the back fence of the plaintiffs' land where it adjoins Council land, reaching over onto the plaintiffs' land with the chain saw and removing substantial branches of the ghost maple. This activity went well beyond what could be regarded as reasonable by way of trimming the overhang of the tree on to the defendants' land. 16 I regard the evidence which I have described as categorical evidence of trespass to land. The first plaintiff's evidence, which I have accepted, demonstrates that the trespass caused damage to the swimming pool pump. He gave oral evidence that he had to repair the pump twice and that on the first occasion, the cost of repair was $180, but the plaintiffs did not put into evidence any invoice or other documentary proof of that expenditure, and I have taken the view that the expenditure is not adequately established by the first plaintiff's assertion when better evidence ought to have been made available. I am satisfied, however, that the expenditure on the pool pump on the second occasion, in the sum of $60.50 was incurred, and that this cost of repair was a consequence of the defendants' trespass. 17 The first plaintiff gave evidence, which I accept, that when he and his family returned from holidays late in December 2002, and observed the severe lopping of the tree and plant, they bundled the cuttings, which were substantial, into their car and took them to a waste disposal facility. The evidence was that fees of at least $26 for disposing of the material at that facility were incurred. 18 I am satisfied that damages totalling $86.50 have been established. In the end, the plaintiffs did not seek to prove any other or further damage. 19 As I have said, an interlocutory injunction was granted on 27 February. It is not necessary to maintain that injunction because late in June 2003, the plaintiffs sold and moved out of 3 Narelle Crescent and are no longer one of the defendants' neighbours. The appropriate course is to dissolve that injunction. 20 The question that remains is the question of costs. I accept the plaintiffs' submission that although in some ways this is a trifling matter to be agitated before the Supreme Court, it is not a trifling matter for the plaintiffs. I accept not only that they were entitled to bring the proceeding in this Court, but that because they sought interlocutory and final injunctive relief, there was sufficient reason for them to do so (compare, though it is not applicable to proceedings in this Division, Part 52A rule 33(2) of the Supreme Court Rules). 21 The defendants have submitted that if there had been a reasonable attempt made by the plaintiffs to sort out their disagreements with the defendants, it would have been unnecessary for the matter to be brought before the Court at all. I disagree with this submission. There is evidence that in May 2002, before the proceeding was initiated, arrangements were made by the defendants for a mediation to take place at the Bankstown Community Justice Centre and an appointment was made. The plaintiffs attended at the appointed time and waited for a substantial time, but the defendants did not attend, even though the defendants had arranged the appointment. The second defendant explained to me today that she did not attend, after talking to her family, because the family decided that there was no realistic prospect of mediation in light of the history of the overall dispute. The fact is, however, that the plaintiffs were prepared to co-operate in an attempt to attend mediation, and it was the defendants who did not meet the appointment. 22 Earlier this year, the plaintiffs arranged for a mediation with Mr W S Whitby. The defendants proposed instead that a mediation should take place before Bankstown Community Justice Centre. The plaintiffs took the view that it was more appropriate, in light of all that had happened, for the mediation to be by Mr Whitby, who is a trained accredited mediator, and so they declined to participate in a mediation before Bankstown Community Justice Centre. In the end, the defendants agreed to participate in the mediation before Mr Whitby, and it was held on 30 April 2003. Unfortunately, however, no mediated solution emerged, apparently for the principal reason that the parties could not agree with respect to the costs of the present proceeding. 23 I set out the evidence concerning mediation because it is relevant for the exercise of my discretion with respect to costs. I have said that I believe it was appropriate in the circumstances for the plaintiffs to bring this proceeding in this Court. Given what occurred late in December 2002, it was appropriate for them to move for interlocutory relief in February 2003. Thereafter, the final hearing of the matter was delayed principally because of the defendants' failure to attend directions hearings on two occasions, so the matter came on for conclusion of the final hearing only today. 24 It is true that the plaintiffs' affidavit in reply was filed outside the timetable I set by directions, but I am satisfied that the defendants were not prejudiced thereby, since much of the affidavit was not read (since it was in reply to the defendants' evidence that I judged to be irrelevant and inadmissible). I also have regard to the fact that I allowed the defendants to file and read the relevant parts of the second defendant's affidavit of today's date in the course of today's hearing, although no advance notice of its contents was given to the plaintiffs. 25 In all those circumstances, I regard it as correct and appropriate to allow costs to follow the event even though the amount of damages to be recovered is very small. Therefore, I order the defendants to pay the plaintiffs' costs of this proceeding. Counsel for the plaintiffs submitted I should order that costs be paid on an indemnity basis but, in my view, the case for doing so has not been made out. This case is special having regard to the small amount of damages that will be recovered and I think appropriate justice is done if an order for costs is made on the normal basis. 26 The plaintiffs also submitted that the order for costs should include the costs of mediation. I have insufficient evidence as to the arrangements that were made with respect to Mr Whitby's costs, and it appears there was no expenditure incurred to an external party with respect to the aborted mediation at the Bankstown Community Justice Centre. With respect to the costs of mediation, in normal circumstances, the parties make their own arrangements for payment. The mediation did not take place as a result of any direction by the Court, although I encouraged it. In all the circumstances, I think the ordinary situation should obtain. I shall, therefore, not make an order with respect to recovery of the costs of mediation. 27 I shall now make my orders. (1) Judgment for the plaintiffs in the proceeding. (2) Order that the defendants pay the plaintiffs' damages in the sum of $86.50. (3) Interlocutory injunction in terms of paragraph 3 of the Statement of Claim, made on 27 February 2003, is dissolved. (4) Order the defendants to pay the plaintiffs' costs of the proceeding, including the application for interlocutory relief and all directions hearings, as agreed or assessed. **********

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