1. The applicant and her family have lived at [address redacted] since 2015. The respondent lives in [address redacted] on the right-hand side of the applicant's home as the house face the street. There are in total some 15 or 16 homes in [address redacted].
2. She says for nearly every weekend in the last 18-24 months the respondent has been "causing a commotion", having parties most weekends which continue into the early morning and stretch over the weekend. He addition he constantly works on his modified 'hot-rod' vehicle in his driveway or on the road outside during the day or in the evenings. These activities cause noise and smoke pollution which detract significantly from their enjoyment of their home and cause the applicant depression, anxiety and stress. The police have been called regularly to respond to the respondent's conduct, but their intervention has proven ineffective. She says the constant barrage of noise has induced heightened anxiety and she now suffers panic attacks which require her to take prescribed medication. This is confirmed in a medical report from Dr S Tang filed on 14 June 2022.
3. As indicated in the response, he denies the allegations. His assertions were put to the applicant, and she made the following replies with respect to the matters raised by him:

(a) The respondent says: "Calling Emergency Services providing them with misinformation. Wasting emergency services time. Telling them I was gassing myself in my garage". The applicant says that is not true, she called the police only because of the smoke and the gas smell coming from his house.

(b) The respondent says: "It's been proven the unfortunate event of faeces in mailbox was not me, it was an acquaintance, who was dealt with by the police after this happened". The applicant says it was his friend and he asked him to do it. She gave police video of the incident, and they were able to identify who did it. She accepts that the respondent did not do it himself.

(c) The respondent says: "Nor did I or ever have threaten the neighbours". The applicant says she has not alleged that she was threatened by the respondent, but she says the constant noise has caused enough distress.

(d) The respondent says: "I am aware previous owners of [address redacted] had multiple complaints against them too from owners of [address redacted] after talking to other people that live in [address redacted]". The applicant says the respondent is lying. Before the respondent moved in, [address redacted] was occupied by a couple with a small child, and she had no issues with them whatsoever.

1. The applicant's husband Branco Vorkapic said he has been subject to abuse from the respondent, often being called "Croatian dog" or "Croatian rat" as he gets into his vehicle in his driveway each morning. Mr Vorkapic arrived in Australia as a refugee in 2000 from an active warzone. He says he is now no longer able to enjoy their home as a safe haven, with his family always suffering, afraid and awaiting what could happen next. He says every weekend "we are afraid of what we know is to happen with the noise and the parties and no rest and calls to the police". At one of these parties, he says those at the party climbed onto his roof and partied up there and he had to climb up to clean up the rubbish they left there the next day. He says they also threw bottles and empty eskies into the tray of his work utility after some parties. He is worried, he says, expecting something worse to happen.
2. The applicant's younger son Milos Vorkapic aged 19 lives at home. He completed his Year 12 in 2021 and is now studying at university. He says the respondent's conduct significantly impacted on his sleep habits while studying and he says this had "a massive effect on my ability to study". Both his study and recreational time were affected, and he was anxious for his mother with the panic attacks she suffered. He said the noise from the respondent's parties was far more intense inside the house as large speakers were set up in the backyard and the bass notes made the house vibrate.
3. The applicant's older stepson Dragan Danilovic does not live in the premises. But he has been present when the noise is occurring and has also overheard it over the telephone. He has assisted the applicant and his family in attempting to have the noise stopped. However, complaints to the police, to the Environmental Protection Authority and their local Assembly Member have not proven in any way effective. When inspectors attend in response to complaints, the respondent simply stops the noise. He understands the respondent has video camera outside his house which alert him to their arrival.
4. In addition to the written and oral evidence from the applicant and her family, the applicant's case is supported by vision and sound recordings taken from a monitoring camera which they installed in the front porch of their home in January 2021. The camera was installed to collect vision to support complaints to the police. The camera is sound activated with vision and sound then automatically recorded on Branco Vorkapic's smartphone. Because of constraints in storage capacity, some video recordings have been deleted from the phone. A selection of some 20 video extracts from the retained recordings were viewed by the Tribunal:

(a) 23 January 2021, 7pm - loud engine revving, shouting, yelling, and cheering.

(b) 4 February 2021, starting from 8:58pm - very loud noise from an electric tool; then loud revving following by smoke haze; noise of shouting and yelling continues late into the night.

(c) 12 February 2021, 10:14pm - very loud engine revving.

(d) 18 February 2021, 6:30pm - quiet afternoon broken by very loud revving, then high pitched grating noise that continues.

(e) 1 May 2021, beginning from 12:33am - very loud car noise, constant acceleration and engine revving that begins in the respondent's driveway then moves out onto the street in front of the applicant's premises with a very loud droning noise.

(f) 13 June 2021, 2:42pm - very loud engine noise from a brown street-rod vehicle in the respondent's driveway. Voice overheard from the respondent's driveway saying with excitement, "Just sound like Summernats!"; continues until 3:50pm.

(g) 9 July 2021, 4:09pm - black street-rod seen driving out of respondent's driveway, driven around [address redacted] then stopped outside applicant's premises and while stationary revving loudly.

(h) 29 September 2021, 4:03pm - loud yelling and engine revving coming from respondent's driveway.

(i) 6 October 2021, 5:17am - loud screaming and fighting adjacent to applicant's and respondent's side fence.

(j) 7 October 2021, 6:19pm - very loud revving engine noise.

(k) 22 October 2021, 7:56pm - very loud shouting and screaming, plus very loud engine noise, revving and smoke plume.

(l) 29 October 2021, 6:26pm - loud revving in respondent's driveway.

(m) 13 November 2021 - 2:32am loud yelling heard again; 3:13am - police in attendance, all quiet; police heard to say, "We've given them a direction, we'll wait around the corner and see what happens, okay?"

(n) 16 November 2021, 7:56pm - loud yelling from the respondent's driveway, "they're a bunch of fuckheads", "you fucking Croatian dogs" and "Get fucked".

(o) 16 November 2021, 10:49pm - police in attendance. Police walk next door to the respondent's premises, music stops, voice heard to say, "What's up?". Further conversation and arguing audible.

(p) 3 December 2021, 7pm - very loud noise of engine followed by very loud exhaust noise.

(q) 13 December 2021, beginning 5:53pm - loud revving in the respondent's driveway, a group of people yelling in driveway with loud revving and exhaust noise.

(r) 16 December 2021 - 7:30pm, street-rod driven from respondent's driveway to in front of applicant's premises; vehicle does a burn out; a large plume of thick black smoke covers the applicant's driveway and entrance; a voice is heard saying "How good is that!"

(s) 9 January 2022, 6:30pm - street-rod driven around [address redacted] and then sits idling loudly in respondent's driveway

(t) 11 February 2022, 10:04pm - loud party noise, beat music, loud voices yelling.

(u) 27 February, 4:11pm - revving street-rod reversed into street outside applicant's premises and then reversed loudly in and out of the respondent's driveway.

(v) 31 March 2022, 7:22pm - car being tuned in driveway adjacent to right hand side of applicant's house, constant loud revving and exhaust noise.

(w) 2 April 2022, beginning at 12:49pm hot-rod idling loudly in respondent's driveway up to 1:12pm.

1. The applicant also provided a timeline of other incidents from January 2020 before the camera was installed. This records at least a monthly repetition of her entry "Noise/Party. Call to police". The timeline also records incidents continuing from May to June 2022 for which videos were not viewed.

1. The respondent filed a response dated 15 January 2022 which disputed the applicant's claim. However, the respondent did not comply with orders of the tribunal of 10 June 2022 to provide a witness statement of himself and any other witness whom he intended to call to give evidence. The respondent did not attend on the two scheduled hearing dates and did not seek to leave to attend by telephone.

1. Nuisance is a tort, that is to say a civil wrong. It does not amount to criminal conduct, and it does not give rise to criminal penalty. If established, it can be remedied by an award of damages or an injunction.
2. As the tribunal held in Tipsy Bull Pty Ltd v Foundry Enterprises Pty Ltd Trading as Hopscotch Bar[1] (Tipsy Bull) the elements of the cause of action are well established:

(a) The applicant must have standing to bring the action;

(b) That there is a substantial interference in the applicant's enjoyment of their land; and

(c) That the interference was unreasonable.[2]

1. There is no issue as to the applicant's standing here.
2. As to the substantial interference element, the tribunal in Tipsy Bull distinguished between situations where the nuisance causes physical damage, and those where the nuisance otherwise interferes with the use or enjoyment of property right. In the latter case where there is no material damage and the interference is less tangible, direct evidence of interference of some kind is required.[3] That evidence must establish the nuisance was substantial and real, and actually interfered with the applicant's enjoyment.
3. In Tipsy Bull, the tribunal said it could infer evidence of interference on only one occasion and was therefore not satisfied the cause of action was made out.[4] As such, it is clear there must be evidence that the interference is repeated or ongoing.
4. As to the unreasonable interference element, the tribunal in Blackshaw & Evans v Campbell (No.2)[5] (Blackshaw) considered in broader terms the elements of nuisance citing what Preston CJ in Robson v Leischke[6] referred to as the third kind, namely "[U]nduly interfering with a neighbour in the comfortable and convenient enjoyment of his or her land...."[7]
5. In Blackshaw, the tribunal summarised his Honour's elucidation of the unreasonableness element[8] of such an interference thus as follows:

Nuisances of the third kind arise where an occupier uses his or her land in a way that results in an unreasonable interference with the neighbour's enjoyment of his or her land, having regard to the ordinary usages of humankind living in a particular society. In determining whether there has been such an unreasonable interference, a balance must be maintained between the right of the occupier to do what he or she likes with his or her own land and the right of the neighbour not to be interfered with. Nuisances of this third kind will usually arise from something emanating from the defendant's land such as noise, vibrations, dust, sediment from soil erosion, smells or smoke.[9] [emphasis added]

1. The tribunal in Blackshaw also cited the comments of Bergin CJ in Gales Holdings Pty Limited v Tweed Shire Council with respect to the unreasonableness element:

Nuisance is the unreasonable interference with the use and enjoyment of a person's land ... The determination of whether there has been "unreasonable interference" is by the application of an objective test - whether a person of ordinary habits and sensibilities in the plaintiff's position and circumstance would regard the interference with the enjoyment of the land as unreasonable. It is necessary to decide whether there has been "an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions" of the community. ... These include the notion of "reasonable give and take".[10]

1. From these summaries, the Tribunal lists three elements which need to be established by the applicant:

(a) The interference to her use and enjoyment of her land by the respondent was substantial, such as to actually interfere with that enjoyment.

(b) The interference to her use and enjoyment of her land by the respondent was unreasonable, the measure of reasonableness taking into account the need for give and take between neighbours.

(c) The interference was repeated and ongoing.

1. The oral and written evidence presents a picture of the applicant and her family under extreme distress as a result of the respondent's conduct over a lengthy period. But the videos (and I accept that the 20 or so extracts viewed are only an example of many other occasions) paint a far worst picture of how overborne they are by that conduct. Their own evidence speaks of loud, lengthy parties and loud noise, smell and smoke pollution from the respondent's constant tunning, revving and modifying of his street-rod vehicle in his driveway and garage. The video evidence shows they are regularly under a constant barrage of noise, where they, and surely the rest of the neighbours, must simply feel under assault or attack. It seems no exaggeration that it reminds the applicant and her husband of the war-torn country they left behind as refugees. It is an inescapable conclusion from some of the comments in the recordings that the conduct is deliberately designed to offend and annoy. Simply put, no one should have to put up with such a nuisance. The respondent's friend's comment on the afternoon of the 13 June 2021 captures it best when he shouts out over the noise and smoke, "it sounds just like Summernats!", except of course that Summernats is a matter of days, not the months and months of auditory assault the applicant and her family has had to bear.
2. The combined evidence of the applicant and her family shows their day-to-day mode of living was interfered with. There is nothing "elegant or dainty [in their] modes and habits of living" simply its ordinary comforts. Virtually all of the tribunal's summary in Blackshaw of the indicia of nuisance of this kind - noise, vibration, dust, smells, smoke - are endured by the family. Some of the conduct complained of - the trespass, the allegations of property damage, the abusive language and the like - which is more intermittent rather than repeated and ongoing is not nuisance but may constitute other categories of civil or criminal wrong.
3. I find the nuisance claim is made out.

1. The applicant seeks an effective way of making the respondent desist from his conduct. She seeks damages of $18,000 which is substantial. The respondent has said he "will not be paying compensation to anyone". That of course does not prevent the Tribunal from ordering him to do so. But it would likely put the applicant to the further task of enforcing the order elsewhere. The conduct simply has to stop, and an injunctive order seems to have the best potential for this. If the respondent does not adhere to the terms of the injunction, he can be dealt with under section 74 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) for failure to comply with an order of the Tribunal.
2. Relevantly, section 74(1)-74(2) provides:

(1) A party to an application must not, without reasonable excuse, fail to comply with a tribunal order.

(2) If a party contravenes subsection (1), the tribunal may do 1 or more of the following:

(a) order the person to pay to the Territory a stated amount (not more than any amount prescribed by regulation);

(b) if the party is the applicant - strike out the application in relation to the dispute;

(c) if the party is the respondent - make an order in favour of the applicant.

1. The question of the tribunal's power to grant injective relief were also considered by the Supreme Court when Blackshaw came on appeal.[11] A point of appeal was that the tribunal has no power to grant an injunction because its jurisdiction is limited to claims for damages in "applications claiming amounts of not more than $25,000" as per section 18 of the ACAT Act.[12] Running contrary to this argument is the effect of section 22 of the ACAT Act which gives the tribunal the same jurisdiction and powers in relation to civil dispute applications as the ACT Magistrates Court, which extends to power to grant injunctions in an action for nuisance.[13] Mossop J accepted that the contention was arguable but did not decide the issue as leave to appeal was not granted. His Honour did however usefully set out a number of possible interpretations of the effect of section 22:

Depending upon the interpretation of s 22 adopted it may be that:

(a) the ACAT had no power to make any order other than a monetary one;

(b) the ACAT could make ancillary orders so long as the initial application claimed damages of less than $25,000; or

(c) the limitation did not apply when non-monetary relief was sought in an application for relief from nuisance.[14]

1. In this matter, I adopt His Honour's second interpretation. Here the applicant has made an initial application claiming damages of less than $25,000 (she seeks damages of $18,000). This enlivens the jurisdiction of the ACAT. On making a nominal award for damages, the Tribunal can then make ancillary orders in the form of an injunction.
2. If the respondent does not comply strictly with the terms of the injunction set out below the applicant has liberty to apply to the tribunal for the respondent to be dealt with under section 74. In that instance it would be open to the tribunal to order the respondent to pay to the Territory an amount up to $4,000 under section 74(2)(a). In addition, the Tribunal can make an order under section 74(2)(c) awarding compensation to the applicant in any reasonable sum.

1. The respondent is restrained from continuing to permit noise, vibration, smell and smoke emanating from [address redacted] or its vicinity to cause a nuisance at the applicant's house at [address redacted] and is required to take the measures specified to abate the nuisance.
2. The Tribunal orders the respondent Ryan Plunkett:

(a) To refrain from setting up and using audio speakers outside his residence.

(b) To refrain from holding parties or other gatherings or playing sound audible outside his residence after 11pm.

(c) To refrain from any repair, service, modification, maintenance, tuning, or testing of any motor vehicle on his premises either in driveways, garages or other sites servicing in a manner such as generates noise, smoke or smell outside the premises.

(d) To refrain from starting any modified motor vehicle on or in the vicinity of his premises at any time, except for the purposes of loading it onto a trailer.

(e) To refrain from encouraging or allowing his friends or associates from starting or driving any motor vehicles in a manner such as generates noise, smoke or smell in the vicinity of his premises.

1. The Tribunal further orders the respondent to pay to the applicant the sum of $100 by way of damages and $165 in reimbursement of the ACAT filing fee, being a total of $265 by 5pm on 10 October 2022.

[1] [2019] ACAT 51

[2] [2019] ACAT 51 at [26]

[3] [2019] ACAT 51 at [29]

[4] [2019] ACAT 51 at [31]

[5] [2016] ACAT 108

[6] [2008] NSWLEC 152

[7] [2008] NSWLEC 152 at [54]

[8] [2008] NSWLEC 152 at [84[- [86]

[9] [2016] ACAT 108 at [21

[10] [2011] NSWSC 1128 at [295]

[11] Campbell v Blackshaw [2018] ACTSC 39

[12] Campbell v Blackshaw [2018] ACTSC 39 at [20]

[13] Campbell v Blackshaw [2018] ACTSC 39 at [25]- [26]

[14] Campbell v Blackshaw [2018] ACTSC 39 at [27]

On appeal the Court of Appeal remarked with respect to these possible interpretations "We see no error in the primary judge's approach": Campbell v Blackshaw [2019] ACTCA 1 at [30]