Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Practice and procedure - Interlocutory appeal - Failed application to strike out - Renewal of arguments in subsequent applications to amend pleadings - Court refusing to reconsider such arguments

Environmental Protection Act 1986 (WA), s 47

Second Respondent (Second Defendant) : No appearance

Second Respondent (Second Defendant) : State Solicitor

Baldry v Jackson [1976] 2 NSWLR 415

Campbell v Paddington Borough Council [1911] 1 KB 869

D A Christie Pty Ltd v Baker [1996] VicRp 89; [1996] 2 VR 582

Elwood v Pioneer Concrete (WA) Pty Ltd & Anor [2002] WASC 32

Hole v Chard Union [1894] 1 Ch 293

Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139

Owen v O'Connor [1964] NSWR 1312

Todd v Novotny [2000] WASC 308

Water Authority of Western Australian v AIL Holdings Pty Ltd (No 2) (1992) 10 WAR 233

Wilson v Metaxas [1989] WAR 285

21st Century Promotions Australia Pty Ltd v Telstra Corp (2000) 211 LSJS 55

Allison Pty Ltd t/as Pilbara Marine Port Service v Lumley General Insurance Ltd [2004] WASC 98

Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485

Brickfield Properties Ltd v Newton [1971] 3 All ER 328

Bridgetown/Greenbushes Friends of the Forest Inc v Executive Director of the Department of Conservation and Land Management (1997) 18 WAR 126

Briggs v Curtis Quick & Associates, unreported; FCt SCt of WA; Library No 980141; 30 March 1998

Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130

Cartledge v E Jopling & Sons Ltd [1963] AC 758

Coutts & Co v Duntroon Investment Corp Ltd [1958] 1 All ER 51

Coventry City Council v Cartwright [1975] 1 WLR 845

Dermer & Anor v The Shire of Busselton & Ors [2002] WASC 15

Dermer & Anor v The Shire of Busselton & Ors [2002] WASC 194

Djordjevic v Australian Iron and Steel Ltd (No 2) [1996] 2 NSWLR 634

Eggleston v Marley Engineers Pty Ltd (1979) 21 SASR 51

Eshelby v Federated European Bank Ltd [1932] 1 KB 254

Golski v Kirk (1987) 14 FCR 143

Hunter v Canary Wharf Ltd & London Docklands Development Corporation [1997] AC 655

Kent v Johnson (Minister of State for Works) (1973) 2 ACTR 1

Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520

Laws v Florinplace [1981] 1 All ER 659

McCarty v North Sydney Municipal Council (1918) 18 SR (NSW) 210

Newcastle City Council v Shortland Management Services (2003) 57 NSWLR 173

Payne v Crawford (1992) 3 Tas R 360

R v Shorrock [1994] QB 279

Re Keystone Knitting Mills Trademark [1929] 1 Ch 92

Thompson­Schwab v Costaki [1956] 1 All ER 652

Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40

Wigan v Edwards (1973) 1 ALR 497

William Aldred's Case [1572] EngR 478; (1611) 9 Co Rep 57b

1 MALCOLM CJ: I would ask Pullin JA to deliver his reasons first.

2 PULLIN JA: This is an application for leave to appeal against an order of Acting Master Chapman made on 25 October 2004. The Acting Master made four orders on that day. They were that the first respondent should have leave to amend his statement of claim, that secondly he should have leave to amend his answers to the applicant Pioneer's request for further and better particulars of amended statement of claim, and there were two consequential orders relating to costs.

3 Pioneer seeks leave to appeal against the second order. In particular, Pioneer seeks an order quashing that order and in lieu seeks an order that:

"insofar as the Plaintiff's application ('the Application') made by chamber summons dated 16 July 2004 seeks leave to amend paragraph A1(a), A12 and A13 of the Answers to the First Defendant's Request for Further and Better Particulars of the Amended Statement of Claim ('the Particulars'), such leave be refused and the Application otherwise be allowed."

4 The Court has a wide discretion on an application for leave to appeal but, generally speaking, leave will not be granted unless the applicant can show that the decision below was wrong or attended by doubt and the applicant would suffer substantial injustice if leave is not granted: see Wilson v Metaxas [1989] WAR 285.

5 The first respondent sues Pioneer for damages and an injunction restraining Pioneer from further developing a quarry pit which is visible from the first respondent's land, and a declaration that Pioneer has not complied with a condition in a statement published by the Minister for the Environment dated 5 December 1991. The statement of claim reveals causes of action for negligence, nuisance and breach of statutory duty.

6 Pioneer made an earlier application to strike out the statement of claim on the basis that it disclosed no reasonable cause of action. This was dealt with by Master Sanderson on 7 March 2002. He dismissed the application and ordered the plaintiff to provide some particulars to amplify some points in the statement of claim.

7 On 16 July 2004 the first respondent applied to amend his statement of claim and to amend some of the answers to the requests for further and better particulars given in answer to Pioneer's request. Acting Master Chapman granted leave to make those amendments and it is the order

referred to above allowing amendments to the particulars which is now the subject of this application.

8 We have seen that only three answers to particulars have to be considered. The first relates to par 3 of the amended statement of claim which reads:

"The Plaintiff (Mr Elwood) is and was at all material times the freehold owner of a residential and farming property known as Teewana, Red Hill, Western Australia. Teewana is now located to the north east and in close proximity to the Red Hill Quarry."

9 A request for particulars was made by Pioneer in the following terms:

"Q1. Give full particulars, including title particulars of:-

10 The answer originally given to that request was:

"A1. (a) Teewana encompasses four separate Certificates of Title. Only the land comprising one of the Certificates of title is affected by Pioneer's Red Hill Quarry. It is Lot 250 on Diagram 13669, Certificate of Title Volume 1239 Folio 960 (Lot 250)."

11 The first respondent sought to amend and was granted leave by Acting Master Chapman, so that the answer read as follows:

"A1. (a) Teewana encompasses two Certificates of Title. They are:-

(i) Lot 250 on Diagram 13669, Certificate of Title Volume 1239 Folio 960 (Lot 250); and

(ii) Lot 147 on Certificate of Title Volume 1168 Folio 274 (Lot 147)."

12 In relation to answer 12, that related to par 11 of the statement of claim which read:

"As a consequence of the contravention of Section 47(1) of the Act referred to at paragraph 10, and because the Red Hill Quarry has become visible from Teewana, Mr Elwood's enjoyment of Teewana, and the value of Teewana, has been seriously impaired."

"Give full particulars of precisely when the quarry allegedly became visible from Teewana."

15 The first respondent sought to amend this particular so that it read:

"A12. In or about mid 1997 (Lot 250) and in or about December 2003 (Lot 147)."

16 I pause to note that the writ in these proceedings issued on 17 August 2001.

17 In relation to answer A13, this also related to par 11 of the statement of claim. The request for particulars read:

"Q13. Identify and give full particulars of which parts of Teewana the quarry is allegedly visible."

"Pioneer's Red Hill Quarry is visible from Lot 250."

19 The first respondent sought leave and was granted leave to amend answer 13 to read:

"Pioneer's Red Hill Quarry is visible from Lot 250 and Lot 147."

20 I turn to deal with proposed ground of appeal 1. Pioneer in its submissions in relation to proposed ground of appeal 1 submits that:

"Prima facie, the proposed amendments appear modest and, in isolation, not controversial. However, the proposed amendments to pars A1(a), A12 and A13 of the particulars have serious ramifications. On proper analysis the amendments constitute material facts and introduce a new cause of action distinct from the cause of action currently pleaded in the statement of claim."

21 The plaintiff submits that the Pioneer quarry was pleaded to be visible from only the land covered by one of the certificates of title making up the first respondent's property, which is called Teewana. Pioneer submits that the amendments which now allege that the quarry became visible from the land covered by a second certificate of title and the first respondent's enjoyment of that land "must be separate and distinct from his enjoyment" of the other lot.

22 Pioneer refers to cases which state the well known principle that a cause of action must be complete in all respects when the writ is issued. See, for example Baldry v Jackson [1976] 2 NSWLR 415 and see also Water Authority of Western Australian v AIL Holdings Pty Ltd (No 2) (1992) 10 WAR 233. Based on these authorities, Pioneer submits that the first respondent "can not include a claim for alleged nuisance or negligence in respect of lot 147 in the current action."

23 In my opinion, this proposed ground has no merit. The endorsement on the writ, the original statement of claim and the amended statement of claim pleaded that the first respondent was the freehold owner of the property known as Teewana. That was a reference, as further particulars revealed, to land contained in four certificates of title. Two have since been sold.

24 There was a complete cause of action in existence before the writ issued in relation to part of the Teewana land; in other words, the Pioneer quarry was visible from part of the Teewana land. The fact that the quarry became day by day more visible partly from the land encompassed by one of the titles and then further by land encompassed by another title does not mean that there is a fresh cause of action day by day.

25 In my view this is a complaint about repetition of acts of the same kind as that for which the action was brought; that is, a continuing cause of action, as to which see O 34 r 19(1)(a) and Hole v Chard Union [1894] 1 Ch 293.

26 The Acting Master rejected Pioneer's submissions. In my opinion, the Acting Master was correct to do so.

27 I now turn to proposed ground 2. In relation to this ground, Pioneer seeks to appeal by contending that the Acting Master erred in law, "in failing to find that the amendments should be refused upon the basis that the amendments sought to introduce claims in nuisance and negligence which were liable to be struck out as failing to disclose a reasonable cause of action." Pioneer submits that mere visual pollution, that is, loss of amenity in the form of a visual aspect as a matter of law, cannot give rise to a cause of action in nuisance or negligence. It is to be observed that this is an attack only on the particulars and not on the statement of claim itself, which already contains such a cause of action. Thus, even if leave is granted and the appeal succeeded it would leave on foot the cause of action in the statement of claim.

28 The Acting Master refused to strike out the amendments on this ground because it was merely a revisiting of matters argued and decided by Master Sanderson. See Master Sanderson's decision Elwood v Pioneer Concrete (WA) Pty Ltd & Anor [2002] WASC 32. Acting Master Chapman said in his reasons for decision:

"The learned master considered this issue on a previous occasion and I do not consider it is appropriate for me to go behind that decision."

29 It is not clear whether this was an exercise of discretion not to entertain a legal question argued before Master Sanderson and determined by him or whether the Master considered that he was precluded from considering the same point again.

30 There is a debate at appellate level in Australia as to whether a party who has failed to obtain an interlocutory is precluded from bringing a second application - as to which see D A Christie Pty Ltd v Baker [1996] VicRp 89; [1996] 2 VR 582 - or whether the Court in the exercise of its discretion may decline to hear the second application - as to which see Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139. Both of these authorities are discussed in Todd v Novotny [2000] WASC 308 by Parker J.

31 Neither party referred to these authorities so it is not appropriate in these circumstances to decide which decision this Court should follow. However, I will assume for present purposes that the Acting Master had a discretion not to allow Pioneer in effect to make a second application to strike out pleadings, as Heydon JA and Foster AJA held in Manning's case. Even on that assumption it is important to bear in mind what Heydon JA said in Manning's case (at 72), namely:

"Nothing in the above reasoning ... is intended to encourage litigants to avoid putting their best cases forward in any interlocutory application. ... [A] litigant bringing a second application where circumstances have not changed on evidence available earlier is facing serious and self created risks of an adverse exercise of judicial discretion. The real evils to which Hayne JA referred to in D A Christie Pty Ltd v Baker at 602 - 3 - the risk of conflicting decisions, the unnecessary vexing of respondents, judge shopping and the diminution of certainty in the conduct by respondents of their affairs and others damaging public confidence in the integrity of judicial decisions, expending time and money on litigation unnecessarily are evils which each Court in its individual discretion will rightly strain to avoid".

32 His Honour went to say that the risk of those evils must be balanced against all the circumstances of the case relevant to whether it is fair and just that leave should be granted. I should also mention what Hayne JA said to expand on the evils referred to by Heydon JA. His Honour said in Christie's case at 602:

"It is not fanciful to conclude that the making of successive applications may well engender a belief in a respondent that the applicant had, in effect, hawked the application from judge to judge until a judge had been found who was willing to exceed to the applicant's arguments. The vice of such a result is apparent."

33 The proposed ground of appeal 2(a) contends that the Acting Master erred in law, but there is nothing to suggest that the Acting Master in the exercise of his discretion failed to take into account any relevant consideration, took into account an irrelevant consideration or acted on any wrong principle of law.

34 In my opinion, in the absence of any contention which would justify the setting aside of the exercise of a discretion, this proposed ground of appeal has no merit. It is not true, as the proposed ground contends, that there was an error in law in refusing to revisit the arguments presented to Master Sanderson and ruled upon by him. Further, it would be pointless to strike out the particulars leaving a cause of action with the same legal objections still on foot.

35 In any event, the action as pleaded and particularised cannot be said to be unarguable. While it is true that the law does not recognise a cause of action to protect a view per se, there are authorities stating that an action may be brought where a defendant by an unlawful act interferes

with the plaintiff's enjoyment of his or her property including a view: see Owen v O'Connor [1964] NSWR 1312 and Campbell v Paddington Borough Council [1911] 1 KB 869.

36 Here the first respondent pleads that Pioneer has acted unlawfully by contravening s 47 of the Environmental Protection Act and that damage flows from that unlawful act.

37 I would therefore refuse leave to appeal in relation to ground 2(a) and 2(b). I would therefore dismiss the application.

38 In relation to costs, an order was made by Acting Master Chapman that the first defendant, that is, Pioneer, pay the plaintiff, that is, Mr Elwood's costs of the application, including reserved costs in any event. That was the exercise of a discretionary judgment about the award of costs as a result of a disputed application.

39 In my opinion, leave should not be granted to appeal against that decision because, in any event, there would be no substantial injustice done if that decision were left undisturbed and, for those reasons, I would dismiss the whole of the application.

40 MALCOLM CJ: In my opinion, this application should be dismissed. I content myself with saying that I agree entirely with the reasons stated by Pullin JA.

41 MCLURE JA: I also agree that the application should be dismissed generally for the reasons given by Pullin JA.