JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: AMMON -v- COLONIAL LEISURE GROUP PTY LTD [2019] WASCA 158
CORAM: MURPHY JA
MITCHELL JA
BEECH JA
HEARD: 19 AUGUST 2019
DELIVERED : 17 OCTOBER 2019
FILE NO/S: CACV 95 of 2018
BETWEEN: DEREK NOEL AMMON
Appellant
AND
COLONIAL LEISURE GROUP PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: MASTER SANDERSON
Citation: AMMON -v- COLONIAL LEISURE GROUP PTY LTD [2018] WASC 280
File Number : CIV 2449 of 2017
Catchwords:
Nuisance - Private - Apartment adjacent to Raffles Hotel - Whether noise from Raffles Hotel unreasonable and substantial interference with use and enjoyment of apartment - Noise levels from hotel in breach of Regulations - Whether and to what extent breach of Regulations relevant to an assessment of nuisance under the common law
Appellate intervention - Finding of nuisance an evaluative judgment - Application of a legal standard in respect of which there is only one correct outcome - Principles of appellate intervention concerning discretionary decisions not applicable
Legislation:
Environmental Protection Act 1986 (WA), s 3
Environmental Protection (Noise) Regulations 1997 (WA), reg 5, reg 7, reg 8, reg 9, reg 17, reg 18A, reg 18B, reg 19
Result:
Appellant's oral application to adduce additional evidence granted
Appellant's written application to adduce additional evidence refused
Appeal dismissed
Category: A
Representation:
Counsel:
| Appellant | : | Mr C P Shanahan SC & Mr A P Hershowitz |
| Respondent | : | Mr M D Howard SC & Ms P A Honey |
Solicitors:
| Appellant | : | JDK Legal Services |
| Respondent | : | Lavan |
Case(s) referred to in decision(s):
Ammon v Colonial Group Pty Ltd [2018] WASC 280
Brown v Tasmania [2017] HCA 43; (2017) 261 CLR 328
Cambridge Water Co v Eastern Counties Leather Plc [1993] UKHL 12; [1994] 2 AC 264
Cohen v City of Perth [2000] WASC 306
Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482
Elston v Dore [1982] HCA 71; (1982) 149 CLR 480
Flessas v The State of Western Australia [2018] WASCA 210
G v O [2018] WASCA 211; (2018) 369 ALR 346
Gartner v Kidman [1962] HCA 27; (1962) 108 CLR 12
House v The King [1936] HCA 40; (1936) 55 CLR 499
Jessical Estates Pty Ltd v Lennard [2007] NSWSC 1434
Marsh v Baxter [2015] WASCA 169; (2015) 49 WAR 1
Miller v Jackson [1977] QB 966
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713
Munro v Southern Dairies Ltd [1955] VLR 332
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
R v Bauer [2018] HCA 40; (2018) 92 ALJR 846
Secure Parking (WA) Pty Ltd v Wilson [2012] WASCA 230
Sedleigh-Denfield v O'Callaghan [1940] AC 880
Seidler v Luna Park Reserve Trust (Unreported, NSWSC, 21 September 1995)
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Southern Properties (WA) Pty Ltd v Executive…
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- Case
- [2019] WASCA 158
- Decision Date
CaseChat Overview and Summary
The central legal issues involved interpreting the relevance of regulatory breaches to the common law concept of nuisance and determining the appropriate standard of appellate review for the primary judge's findings. The defendant argued that the deferential standard of appellate review, as articulated in House v The King, should apply to the primary judge's evaluative judgment on nuisance, while the plaintiff contended that the correctness standard of appellate review, as affirmed in Warren v Coombes, should apply.
The court found that the primary judge's determination of nuisance involved applying a legal standard that demanded a unique outcome, which attracted the correctness standard of appellate review. The court rejected the defendant's reliance on the deferential standard applicable to exercises of judicial discretion, as articulated in House v The King and Norbis v Norbis, stating that these standards applied only where the legal criteria permitted a range of legally permissible outcomes. Since the primary judge's findings on nuisance involved a unique outcome demanded by the legal criteria, the correctness standard applied. The court held that appellate intervention was warranted if the primary judge's findings were incorrect.
The court ultimately upheld the primary judge's finding of nuisance and rejected the defendant's appeal, affirming the correctness standard of appellate review applied to the primary judge's evaluative judgment. The decision underscored the importance of distinguishing between legal criteria that demand unique outcomes and those that permit a range of permissible outcomes when determining the appropriate standard of appellate review.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Colonial also placed considerable reliance on the observations of Gageler J in Minister for Immigration and Border Protection v SZVFW.[174] In that regard, Colonial contended, in effect, that:1.Gageler J in SZVFW had referred to two standards of appellate review, the first being a 'more general correctness standard of appellate review' (correctness standard), and the second applying to 'value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right' (deferential standard).[175] 2.The master's decision attracts the deferential standard of appellate review.[176][174] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713.[175] Respondent's written submissions, pars 7 - 11; WB 36 - 37.[176] Respondent's written submissions, par 16; WB 38. The relevant passages of Gageler J's judgment in SZVFW are set out below. Gageler J said:[177][177] SZVFW [35] ‑ [37], [39] ‑ [41], [43] ‑ [50].35.Whilst the conception of error is integral to the conception of an appeal, what amounts to 'appealable error' in a judgment cannot be understood without reference to a standard of appellate review. Subject to constitutional limitations, a standard of appellate review amounts to a legislative or common law allocation of decision-making authority between the trial court and the appellate court.36.In relation to an appeal from a final judgment of a primary judge sitting without a jury, essentially two standards of appellate review have come to be recognised in Australia. The present case provides no occasion to consider the 'added restraint' and 'particular caution' which an appellate court should exercise in reviewing a judgment on a matter of practice and procedure.37.If and to the extent that the judgment under appeal turned on the exercise of what can be characterised as a 'discretion' committed to the court of which the primary judge was a member, the long‑settled understanding is that members of an appellate court cannot substitute on appeal a judgment which turns on their own exercise of discretion 'merely because they would themselves have exercised the original discretion, had it attached to them, in a different way'. For appealable error in the exercise of judicial discretion to be established, the appellate court must be satisfied that what was done by the primary judge in the judgment under appeal amounted 'to a failure to exercise the discretion actually entrusted to the court'. …39.For a period during the 1960s and 1970s (before the introduction in 1984 of the current comprehensive requirement for special leave as a precondition to an appeal under s 73 of the Constitution), some Justices of the High Court expressed support for importing similar considerations into appellate review of an evaluative conclusion reached by a primary judge when applying imprecisely defined legal criteria to findings of primary fact, even where the appellate court's ability to apply those criteria to those findings of primary fact so as to form its own opinion as to the correctness of the primary judge's conclusions was unimpeded by any limitation inherent in proceeding on the record. In an appeal from a judgment of a judge sitting without a jury in a common law negligence case where there was no challenge to the judge's findings of primary fact, for example, some Justices would have refrained from finding error in the primary judge's conclusion that conduct failed to measure up to 'the conduct of a hypothetical reasonable man in the circumstances' unless convinced that the primary judge had overlooked some relevant primary fact or unless convinced that the conclusion was 'clearly wrong' in the sense that 'no rational interpretation of the facts' would sustain it. 40.That approach of 'judicial restraint' in undertaking appellate review of evaluative conclusions ... The approach, however, never commanded the assent of a majority of the High Court. It was firmly rejected - 'despatched' - by the majority in Warren v Coombes. 41.Rejecting the approach of appellate restraint and reaffirming the approach more commonly taken in Australian and English case law of treating correctness as the general standard of appellate review, the majority in Warren v Coombes stated:'Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.'In language significant for its studied generality, the majority in Warren v Coombes went on to state:'The duty of the appellate court is to decide the case - the facts as well as the law - for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment.'Defending the correctness standard against the criticism that it opens a final judgment to a multiplicity of judicial opinions none of which is more likely to be better than the first, the majority explained:'The fact that judges differ often and markedly as to what would in particular circumstances be expected of a reasonable man seems to us in itself to be a reason why no narrow view should be taken of the appellate function. The resolution of these questions by courts of appeal should lead ultimately not to uncertainty but to consistency and predictability, besides being more likely to result in the attainment of justice in individual cases.'…43.The line of demarcation between conclusions of a primary judge which attract the deferential standard of appellate review applicable to an exercise of judicial discretion articulated in House v The King and conclusions of a primary judge which attract the more general correctness standard of appellate review rearticulated in Warren v Coombes was in due course squarely addressed in Norbis v Norbis. The House v The King standard was there held to apply to appellate review of an order made by a judge in the exercise of a statutory power conferred on the Family Court to 'make such order as it thinks fit altering the interests of the parties' in matrimonial property. Mason and Deane JJ, with whom Brennan J agreed, explained that making the order involved an exercise of 'discretion' in the sense in which that term had been deployed in House v The King because application of the statutory criterion called for 'value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right'. 44.The holding in Norbis v Norbis, and their Honours' explanation of the reason for it, accorded with earlier decisions which had applied the House v The King standard to appellate review of evaluative conclusions in respect of which the applicable legal criteria permitted of some latitude of choice or margin of appreciation such as to admit of a range of legally permissible outcomes. Conclusions as to 'just and equitable' apportionment of responsibility between tortfeasors under contribution legislation, as to assessment of general damages at common law, as to the valuation of property, and as to the best interests of the child under child welfare legislation furnish examples. Their Honours in Norbis v Norbis went on to explain that the line of demarcation which they identified stemmed from the fundamental conception of an appeal as a process for the correction of error: '[i]f the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance'.45. Norbis v Norbis was not departed from in Singer v Berghouse, where the House v The King standard was held to be applicable on appellate review of an opinion formed by a primary judge, as a precondition to the exercise of discretion to make a maintenance order in testator's family maintenance proceedings, as to whether an applicant for the order had been left with 'inadequate' provision for his or her 'proper maintenance, education and advancement in life'. Explaining that holding, the majority expressed agreement with the statement that '[u]nless appellate courts show restraint in disturbing the evaluative determinations of primary decision‑makers they will inevitably invite appeals to a different evaluation which, objectively speaking, may be no better than the first'. To describe a second evaluative determination as 'no better than the first' is necessarily to postulate that both determinations are legally permissible.46. Warren v Coombes itself illustrates that it is not sufficient to justify departure from the correctness standard of appellate review that a conclusion of a primary judge has been arrived at by a process of reasoning which can be characterised as evaluative. In Warren v Coombes, the conclusion of the primary judge to which the general standard was held to be applicable was a conclusion that the defendant had not failed to exercise reasonable care. The point is further illustrated by the outcome in Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd. There the conclusion of the primary judge which was the subject of appellate challenge was that certain conduct in which a corporation was found to have engaged answered the statutory description of 'conduct that is unconscionable'. A submission to the effect that the evaluative character of that conclusion triggered application of the standard of appellate review applicable to an exercise of judicial discretion was unanimously rejected: implicitly by three members of the High Court, and explicitly by the other two. Callinan J, with whom Kirby J specifically agreed on this point, suggested that 'every judgment of a trial judge requires an evaluation of facts' and pointed out that '[a]n evaluation of facts found is precisely one of the exercises which an appellate court is obliged, when an unrestricted right of appeal is available, to undertake'. Like a common law duty of care, a statutory prohibition on conduct that is unconscionable posits a standard of conduct which, on proven facts, a person obliged to meet that standard either has met or has not.47.The Norbis v Norbis explanation of when the standard of appellate review applicable to an exercise of judicial discretion is attracted and when it is not was reiterated in Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission. In the context of restating the ordinary incidents of an appeal by way of rehearing, and with reference to House v The King, it was reiterated that 'discretion' in the sense applicable to appellate review of an exercise of judicial discretion refers to a decision-making process in which 'the decision-maker is allowed some latitude as to the choice of the decision to be made'.48.The course of High Court authority since Warren v Coombes has accordingly proceeded on a consistent understanding of how the line of demarcation is to be drawn between those of a primary judge's conclusions which attract the correctness standard of appellate review reaffirmed in that case and those which attract the deferential standard applicable to appellate review of an exercise of judicial discretion. Without excluding the potential for other considerations to affect the standard of appellate review in a particular category of case, the understanding provides a principled basis for making at least the principal distinction. 49.The line is not drawn by reference to whether the primary judge's process of reasoning to reach a conclusion can be characterised as evaluative or is on a topic on which judicial minds might reasonably differ. The line is drawn by reference to whether the legal criterion applied or purportedly applied by the primary judge to reach the conclusion demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies. The resultant line is not bright; but it is tolerably clear and workable. 50.That understanding has in the past been acknowledged and applied to guide appellate review in the Full Court of the Federal Court. There is no reason to depart from it now. (emphasis added) (citations omitted)