Plaintiffs v Defendant [2026] VSC 175 | Case summary

For the reasons set out above, I will make an order granting leave to the plaintiffs to file and serve the proposed further amended statement of claim, subject to the inclusion of the specific particulars defining 'locality' and 'purpose' referenced by counsel for the plaintiff in the course of the hearing, and with the removal of the words 'inter alia' from the particulars to paragraph [11A2].
I will also make orders for the discovery of documents in categories B and E from the plaintiffs' request, subject to the modifications and considerations set out above, but will dismiss the application in relation to the balance of the discovery categories.
I will ask the parties to confer on any issues as to the costs of the applications and either submit consent minutes within 14 days if a position can be agreed, or otherwise submit any brief written submissions concerning costs (limited to 3 A4 pages) by that time, and the issue will be determined on the papers shortly thereafter.

The plaintiffs' position concerning the proposed amendments was that they had previously relied upon decisions such as Hunt Leather Pty Ltd v Transport for New South Wales [2023] NSWSC 840 concerning the current law as to nuisance when drafting the statement of claim. Since the FASOC was prepared, the High Court had delivered its judgment in the appeal of the NSW Court of Appeal's decision in that proceeding,[2] which had given rise to a need to amend the pleadings here in order to be consistent with the High Court's statements as to the law of nuisance in Australia.[3]
The plaintiffs submitted that the reasons of the majority of the High Court in Hunt Leather Pty Ltd v Transport for NSW (2025) 426 ALR 621 ('Hunt Leather') set out a different form of the test for the tort of nuisance than had previously been understood. The questions to be asked are whether the defendant substantially interfered with the plaintiffs' ordinary use and enjoyment of land, and if so, whether the cause of the substantial interference was common and ordinary in the locality, and if so, whether the defendant reasonably minimised the extent of the substantial interference. If there was a substantial interference that was not from a cause that was common and ordinary in the locality, or if the cause was not common and ordinary in the locality and the interference was not reasonably minimised, there will be a nuisance. Previously, courts had approached the test for nuisance by reference to a synthesis of relevant factors to determine the reasonableness of a defendant's interference with a plaintiff's enjoyment of their land. The plaintiffs say the amendments serve to articulate their case by reference to the test set out by the High Court, rather than the previous approach that is currently reflected in the FASOC.
Mr Vines' affidavit and Ms Ong's affidavit exhibit correspondence exchanged between the parties in the weeks leading up to the present application, which sets out their respective positions concerning the proposed amendments. Although earlier versions of the proposed pleading are not exhibited, the evidence suggests that the criticisms made by YVR of the proposed amendments were not materially affected by any changes suggested by the plaintiffs in advance of the hearing. Principally (although not exclusively), the correspondence sent by Mr Vines expresses concerns about terms used in the pleading that are said to be vague and/or uncertain, including references to 'locality' and 'purpose' in the context of the test to be applied in a proceeding alleging a nuisance, and a lack of adequate particularisation.
YVR's position ultimately was that the pleading proposed by the plaintiffs contains a number of problems that mean that leave should not be granted this close to trial without those issues being addressed.
The specific complaints made by YVR about the proposed amendments are that:

Plaintiffs v Defendant

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Judgment (16 paragraphs)

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Legislation Cited (4)

Cases Cited (5)