Ammon v Colonial Leisure Group Pty Ltd
[2018] WASC 280 (S)
•7 SEPTEMBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: AMMON -v- COLONIAL LEISURE GROUP PTY LTD [2018] WASC 280
CORAM: MASTER SANDERSON
HEARD: 2 - 7 MAY; 10 MAY 2018
DELIVERED : 7 SEPTEMBER 2018
FILE NO/S: CIV 2449 of 2017
BETWEEN: DEREK NOEL AMMON
Plaintiff
AND
COLONIAL LEISURE GROUP PTY LTD
Defendant
Catchwords:
Nuisance - Plaintiff's apartment adjacent to Raffles Hotel - Whether noise from hotel a nuisance - Whether injunctive relief ought be granted - Turn on own facts
Legislation:
Environmental Protection (Noise) Regulations 1997
Strata Titles Act 1985
Result:
Action dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr A P Hershowitz |
| Defendant | : | Ms C L Donald & Ms P A Honey |
Solicitors:
| Plaintiff | : | JDK Legal Services Pty Ltd |
| Defendant | : | Lavan |
Case(s) referred to in decision(s):
Cohen v City of Perth [2000] WASC 306
Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482
Marsh v Baxter [2014] WASC 187
Miller v Jackson [1977] QB 966
Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79
Sturges v Bridgman (1879) 11 Ch. D 852
MASTER SANDERSON:
The Raffles Hotel (the Raffles) sits in a beautiful position on the banks of the Swan River adjacent to Canning Bridge. There has been a hotel on the site since 1896. In 2002 the Raffles was heritage listed. In or about 2005, an apartment comprising approximately 116 residential lots was constructed on the northern boundary of the Raffles. The Raffles and the Raffles apartments (apartments) are part of the same strata complex. The defendant (CLG) purchased the Raffles in December 2009 and remains the current owner.
The plaintiff owns apartment E501 which is the southern‑most apartment on the fifth floor of the east side of the apartment building. The plaintiff's apartment is adjacent to the Raffles beer garden. CLG commenced a complete redesign and redevelopment of the Raffles in March 2013. The Raffles remained closed throughout the refurbishment and re‑opened in December 2014. The plaintiff says the noise emanating from the Raffles is a private nuisance which interferes with his enjoyment of his apartment. He seeks an injunction to restrain the playing of music in the beer garden and one of the bars of the Raffles between certain hours during the week.
The pleadings
The plaintiff brings his claim only in private nuisance. In the amended statement of claim filed 9 November 2017, he pleads the Raffles is open for business seven days a week and operates until midnight Wednesday to Saturday and until 10.00 pm on Sunday. That is admitted by the defendant. The essence of the plaintiff's claim is found at par 7 of the amended statement of claim in the following terms:
Since at least 2014 the defendant by itself, its servants or agents has directed and allowed and continued to allow its operators and employees to operate the beer garden and internal bar at the Hotel and to play loud music in those areas in such a manner as to create a volume of noise and vibration (Noise) from within the Apartment and on the balcony of the Apartment, that:
7.1wrongfully causes excessive noise and vibration that interferes with, interrupts and precludes the plaintiff's right of enjoyment to the Apartment and to reside in the Apartment without interruption; and
7.2is and has consistently been measured to be in excess of the 'assigned level' of noise allowed by the Regulations under the Environmental Protections (Noise) Regulations 1997;
hereinafter collectively referred to as the ('Nuisances').
The particulars provided to par 7.2 detail the alleged breaches of the Environmental Protection (Noise) Regulations 1997 (the Regulations). However, this is not a claim which is founded in breach of statutory duty. The sole legal basis of the plaintiff's claim is private nuisance.
This was not a case where pleadings played a prominent part. The issue between the parties was quite confined and relatively straight forward. It can be put this way. Is the noise emanating from the Raffles such that it amounts to a private nuisance and if it does, should the defendant be restrained by an injunction from continuing with that nuisance?
As the amended statement of claim stood when it was issued, the precise form of orders sought by the plaintiff was not specified. When the parties had closed their case the plaintiff formulated the relief sought in the following terms:
1.The defendant be perpetually restrained and an injunction is hereby granted restraining it whether by itself, its officers, servants, agents or otherwise from:
(a)playing music of any kind whatsoever in the Beer Garden of the Raffles Hotel situate at 70 Canning Beach Road, Applecross –
(i)after 9.00 pm and before 11.00 am on Wednesday, Friday and Saturday;
(ii)after 8.00 pm and before 11.00 am on Sunday and public holidays; and
(iii)after 8.00 pm and before 11.00 am on Monday, Tuesday and Thursday.
(b)playing music of any kind whatsoever in the River Room and outside balcony of the River Room of the Raffles Hotel situate at 70 Canning Beach Road, Applecross ‑
(i)after 9.00 pm and before 11.00 am on Tuesday, Wednesday, Friday and Saturday;
(ii)after 8.00 pm and before 11.00 am on Sunday and public holidays; and
(iii)after 8.00 pm and before 11.00 am on Monday and Thursday; and
(c)keeping the doors from the River Room to the upstairs balcony of the Raffles Hotel open at all after 8.00 pm and before 9.00 am on Sunday and public holidays; and
(d)keeping the doors from the River Room to the upstairs balcony of the Raffles Hotel open at all after 9.00 pm and before 8.00 am on Monday to Saturday.
During her closing submissions, counsel for the defendant submitted the form of orders proposed by the plaintiff was somewhat narrower than the orders sought in the amended statement of claim. Really she was opposing any leave being granted to the plaintiff to re‑amend in terms of the minute. I indicated at the time I would grant leave to re‑amend. Strictly speaking, a prayer for relief is not part of a pleading. It is really a submission put forward by a party who is found to have a cause of action against the other party. Particularly when the remedy is equitable in nature, it is always a matter of discretion for the court either to grant or not grant the relief and if the relief is granted the form in which it is granted. The defendant suffers no prejudice by the grant of leave to re‑amend - if anything the relief claimed is narrower than was originally proposed in the amended statement of claim.
I need not detail the defendant's pleaded defence. It is sufficient if I say the defendant denies par 7 of the amended statement of claim and as part of that denial says it has taken certain steps to reduce noise. Paragraph 4.3.2 of the defence is in the following terms:
the defendant has taken a number of steps reduce the noise emissions from the Raffles Hotel to the plaintiff's Apartment, independently and in response to the plaintiff's complaints;
No reply was filed by the plaintiff. However, it became apparent through the course of the trial the plaintiff did not deny the defendant had taken the measures pleaded in par 4.3.2 and he also did not deny the result had been a reduction in noise. His complaint was that even with these measures having been taken, the noise was too loud and constituted a nuisance.
The law relating to private nuisance
There was no real dispute between the parties as to the principles to be applied when determining whether or not noise constitutes a nuisance.
In Marsh v Baxter[2014] WASC 187, Kenneth Martin J considered the law in relation to private nuisance. I can do no better than quote what his Honour had to say and respectfully adopt his observations at par 355 ‑ 363:
As regards the tort of private nuisance, it is convenient to canvass some superior court case authority. I turn first to the High Court of Australia in Elston v Dore [1982] HCA 71; (1982) 149 CLR 480. There, Gibbs CJ, Wilson and Brennan JJ (Murphy J generally agreeing) discuss the House of Lords' decision, Sedleigh-Denfield v O'Callaghan [1940] All ER 349; [1940] AC 880 and speeches of Lords Atkin and Wright therein. This passage from Lord Atkin's speech in Sedleigh‑Denfield v O'Callaghan is cited in Elston v Dore:
'For the purpose of ascertaining whether, as here, the plaintiff can establish a private nuisance, I think that nuisance is sufficiently defined as a wrongful interference with another's enjoyment of his land or premises by the use of land or premises either occupied or, in some cases owned, by oneself. The occupier or owner is not an insurer; there must be something more than the mere harm done to the neighbour's property to make the party responsible. Deliberate act or negligence is not an essential ingredient but some degree of personal responsibility is required, which is connoted in my definition by the word 'use' (487). '
In Elston v Dore, Gibbs CJ, Wilson and Brennan JJ observed of this passage:
'Lord Atkin's judgment suggests that an interference with the enjoyment of lands can be described as 'wrongful' if it was deliberate or negligent (487).'
Their Honours moved to examine the speech of Lord Wright in the same case: see Sedleigh‑Denfield v O'Callaghan (903) and Elston v Dore (487 ‑ 488). Lord Wright had said:
'A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with. It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society (487 - 488).'
Towards these words, Gibbs CJ, Wilson and Brennan JJ in Elston v Dore observed:
'In our respectful opinion, that is the proper test to apply in most cases. Although, as was pointed out in Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty Ltd (The Wagon Mound [No 2]) [1966] UKPC10; [1967] 1 AC 617 at 639, the wide and uncertain boundaries of the law of nuisance include cases in which negligence in the narrow sense is not essential, fault of some kind is almost always necessary. In the present case the action of the respondent was deliberate, but in our opinion it will only have been wrongful if it was not reasonable in the sense to which Lord Wright refers (488).'
Locally, the tort of private nuisance was both recently and closely examined by the Western Australian Court of Appeal in Southern Properties (WA) Pty Ltd. I mention first McLure P's observations commencing at [115]. Her Honour said [118] - [119]:
'Nuisance protects a claimant's interest in the beneficial use of land. It is not confined to the actual use of the soil but extends to the pleasure, comfort and enjoyment which a person normally derives from occupancy of land. Thus nuisance covers physical damage to property and non-physical damage. To constitute a nuisance, the interference must be unreasonable. In making that judgment, regard is had to a variety of factors including: the nature and extent of the harm or interference; the social or public interest value in the defendant's activity; the hypersensitivity (if any) of the user or use of the claimant's land; the nature of established uses in the locality (eg residential, industrial, rural); whether all reasonable precautions were taken to minimise any interference; and the type of damage suffered.
This exercise involves weighing the respective rights of the parties in the use of their land to make a value judgment as to whether the interference is unreasonable. Although the 'fault' of the defendant may be a relevant consideration in an assessment of whether the interference with the claimant's enjoyment of land is unreasonable, the duty not to expose one's neighbours to nuisance is not necessarily discharged by the exercise of reasonable care. Liability in nuisance is strict. Once a prima facie case has been established, it is for the defendant to prove its defence …'
McLure P (with whom Buss JA agreed on this issue) concluded the facts presenting in Southern Properties (WA) Pty Ltd, where the physical damage from smoke (by reason of a prescribed burn which interfered with the plaintiff's use of their land for grape growing for the purpose of producing wine) did not in the end constitute an unreasonable interference with the grape producer's land: see [120].
By his dissenting conclusion on that appeal, Pullin JA looks to have concluded the appellant should have succeeded in establishing a claim of private nuisance, as well as under common law negligence: see [333].
Pullin JA looks to have reached the same conclusion concerning non‑applicability of the CLA to a cause of action in tort for private nuisance, [329]. His Honour said:
'The essence of a claim in nuisance is a pleading of material facts revealing a substantial and unreasonable interference with the beneficial use of the appellants' land [315].'
Further:
'An action in nuisance does not involve a failure to exercise reasonable care. Nuisance is a cause of action directed at the harm caused, rather than the conduct causing it. Because proof of nuisance does not involve a failure to exercise reasonable care, the CLA does not apply to a cause of action in nuisance [329].'
In Marsh v Baxter his Honour was dealing with a claim by the plaintiffs that the escape of genetically modified canola from the defendant's farming property had contaminated the plaintiff's crop and that amounted to actionable nuisance. That case is very different from this case. Of course the principles in relation to private nuisance are the same but the application to the facts is case specific. A case similar to this one is the decision of Robert‑Smith J in Cohen v City of Perth [2000] WASC 306. Mr Cohen lived in a second floor apartment in Murray Street in the heart of Perth. The City of Perth were responsible for waste collection from the area. Mr Cohen said that the time and manner of the waste collection was a private nuisance and he sued the City of Perth. He was successful both in a claim based upon breach of statutory duty and in his action for private nuisance. In the course of his reasons, Robert‑Smith J said:
It may be accepted that just as breach of a legislative standard does not establish negligence (Sibly v Kais (1967) 118 CLR 424, 427; Tucker v McCann [1948] VLR 222, 225, 234; Abela v Giew (1964) 65 SR (NSW) 485, 489) nor, by analogy, does breach of a legislative standard of itself establish a private nuisance. Even where a legislative provision states that certain conduct is 'unreasonable' for the purposes of that legislation, or constitutes a statutory nuisance, a breach of the provision may not be a private nuisance at common law (Salford City Council v McNally [1976] AC 379, 390).
The first contention on behalf of the Council in respect of the claim in private nuisance is that where the conduct is inherently noisy and authorised by statute there will be no private nuisance where reasonable precautions have been taken to avoid excessive noise - and it is said that here the Council has taken reasonable precautions by way of modifications to its trucks and changes to the times at which rubbish is collected.
The defendant relies on Manchester City Council v Farnworth [1930] AC 171 and Miller v Jackson [1977] QB 966. However, in Farnworth the Manchester Corporation was held liable for damages and an injunction went to prevent the emission of poisonous fumes from the chimneys of an electricity generating station notwithstanding the Manchester Corporation Act 1914 authorised it to erect, work and use a generating station on the land in question. The trial judge had held that the appellants had proved a generating station in that position could not be used without causing a nuisance. The Court of Appeal and the House of Lords disagreed. The cause of the nuisance was the sulphur content of the coal being burnt. The Corporation used local coal which had a higher sulphur content than imported coal. As Viscount Sumner put it (at 188):
'It was no part of the plaintiff's case that the use of ordinary Lancashire coal was in itself negligent, but all the same the station causes a nuisance, not because the Legislature has so willed it, but because the Manchester Corporation make their profit by working in this way.'
His Lordship made the same point again at 194:
'If, in a plant, to which the Legislature has given a general sanction without prescribing any particular design, coal is burnt so as to emit into the lower strata of the atmosphere sulphur dioxide in such conditions as are likely to cause considerable mischief, I think that, in proportion as the undertakers are free to use such a mischief-working process, their obligation to find some correlative means of protecting their neighbours becomes more exacting. The nature and degree of the plaintiff's suffering and the cost, trouble and inconvenience to the defendant Corporation of saving him from it are elements on the two sides of the case, which must be considered in deciding what is reasonable, but I cannot see that either on principle or on authority it is a sufficient answer to a criticism, otherwise sound, to say that, if so, Manchester's electricity would cost it more.'
This is not a case in which by imposing upon the Council a responsibility to undertake waste collections in Perth City the legislature must be held to have sanctioned a nuisance (see Metropolitan Asylum District v Hill (1881) 6 App Cas 193 , per Lord Watson at 212-3). Thus, whether or not the emission of noise is such as to constitute a private nuisance at common law falls to be decided according to ordinary principles - including whether or not the Council has taken reasonable precautions to avoid excessive noise, considered in the way described by Viscount Sumner.
Miller v Jackson (supra), was an illustration of the resolution of competing societal values and interests and is the subject of interesting comment by Heerey J, in an article 'Storytelling, Post-modernism and the Law' in (2000) 74 ALJ 681, 687-8. A line of houses had been built adjacent to a small ground which for many years had been used as a village cricket-ground. It was inevitable that so long as cricket was played on the ground balls hit beyond the boundary would fall into the rear gardens or on the roofs of the houses. The plaintiffs sought an injunction and damages for negligence and nuisance. A majority constituted by Geoffrey Lane LJ and Cumming-Bruce LJ in the Court of Appeal held the cricket club liable in negligence and nuisance; a differently constituted majority (Lord Denning MR and Cumming Bruce LJ) refused an injunction, holding that the greater interest of the public in the playing of cricket should prevail over the interests of the residents. As Heerey J suggests in his article (at 688):
'If the game was baseball, and balls landed in the plaintiff's garden with exactly the same frequency, it is hard to imagine the litigation having the same outcome.'
I do not see Miller v Jackson as affording any assistance in the resolution of the instant case.
The next contention on behalf of the defendant is that it is not every interference with the use or enjoyment of property which amounts to a private nuisance at common law: the interference must be material and unreasonable, having regard to what is reasonable in the locality, allowing for reasonable 'give and take' and disregarding any peculiar delicacies of the plaintiff. Mr Colvin for the defendant referred to Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482. He further submitted that these matters are not established by proof that the Council has engaged in conduct which constitutes an offence under the Act or regulations - which is all that has been pleaded by the plaintiff.
In Don Brass Foundry Jordan CJ discussed (at 486-7) the relevant authorities from which he extracted the following propositions, which I respectfully adopt (with some minor reformulation) as reflecting the law:
(1)The test is whether the emanations complained of create 'an inconvenience materially interfering with the ordinary comfort physically of human existence, not according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions …'.
(2)The law does not indulge mere delicacy or fastidiousness.
(3)A person living in a locality mainly occupied for the conduct of trades which are inevitably noisy or smoke-producing cannot reasonably expect the same standards of immunity from noise or smoke as a person living in a mainly residential area - but even here there must not be an unreasonable increase in the amount of noise or smoke which denies the person reasonable comfort.
(4)In considering whether unreasonable inconvenience has been caused, allowance must be made for reasonable give and take (temporary construction or demolition work is an example).
(5)In many cases it is a question of degree.
Applying then what I have described as the ordinary principles, I have come to the view (and find) that the plaintiff's case has been made out on this basis also.
Although breach of the prescribed standards does not of itself establish a private nuisance it is relevant evidence of which account can be taken, and I so do. Furthermore, allowing for the fact that the actual noise levels (measured and otherwise) would vary from collection to collection depending on such factors as what was in the rubbish, the quantity of material already in the truck and the manner of operation of the truck, it is clear on the evidence that the noise emitted substantially exceeded the assigned levels. I accept that the noise materially interfered with the convenience and comfort of Mr Cohen and that its effect upon him was not due to any particular delicacy or fastidiousness on his part. I am satisfied on the balance of probabilities that the noise of the Council's garbage trucks affected him to a substantially greater degree than the witnesses Brennan, Haydon, Stephen and McAllister because of the closer proximity and relationship of his unit to the collection point and what he described as the 'amphitheatre' effect of the walls and buildings [152] - [159].'
Based upon these two decisions and the cases referred to therein, a number of points can be made. First, nuisance protects a claimant's interest in the beneficial use of land. But as Pullin JA observed in Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79, the action does not involve a failure to exercise reasonable care. Nuisance is a cause of action directed at the harm caused rather than the conduct causing it. Second, the law does not indulge mere 'delicacy or fastidiousness'. This would seem to embody the principle that what must be established by a plaintiff is that a reasonable individual would find the nuisance substantial and real and would actually interfere with the enjoyment of the property. So the test to be applied is not entirely subjective, although the effect of the interference upon particular individuals might vary.
Finally, in many cases, and this is one of them, it is a question of degree. By that I mean all of the relevant factors must be taken into account. I will detail this point more fully later in these reasons but for present purposes it can be illustrated in this way. The apartments are in a busy precinct. Canning Highway generally and Canning Bridge in particular is a major arterial thoroughfare carrying thousands of cars per day. The Kwinana Freeway sits to the east of the apartments and that too is a major arterial road. The apartments are not in a quiet suburban back water. There is ambient noise of a kind which would not be found if the apartments were constructed in a quieter location.
One further observation is worth making. Cases alleging private nuisance caused by noise are relatively uncommon. Cohen is one and it was decided almost 18 years ago. Most of the other cases go back many years - the Don Brass Foundry decision referred to by Robert Smith J dates from 1948. Given the urbanisation of Australian cities over the last 25 or so years and the explosion in the number of apartments constructed during that period, it is perhaps surprising there have been so few cases of noise related nuisance. It may have something to do with the fact that legislation has armed local authorities with the power to take steps to prevent noise disrupting neighbours or it may reflect a tolerance on the part of residents borne of the realisation that city apartment living, with all its benefits, means from time to time noise will be an issue.
Strata by-laws
In keeping with the provisions of the Strata Titles Act 1985 (the Act) the Raffles and the apartments are subject to by-laws. A number of those by-laws are relevant to this dispute. The following rules are relevant[1]:
[1] Management Statement - Schedule 1 and Schedule 2 By‑Laws Amendments behind Tab 2 Vol 1 Trial Book of Documents.
24.3Mixed Use Scheme
(a)The Original Proprietor will develop the Scheme as a mixed use development of luxury residential apartments and a commercial lot, being the Raffles Hotel.
(b)Proprietors acknowledge that:
(i)As part of the planning approval for the development of the Scheme as stated in the Deed of Development between the Local Government Authority and Original Proprietor dated 10 January 2003 the Local Government Authority require that the Raffles Hotel be a Licensed Venue;
(ii)The entire Raffles Hotel will be a Licensed Venue and may be used for any Required Use or Permitted Use.
(iii)The Raffles Hotel and the businesses operated from within and upon that Lot will operate up to seven days per week at times approved by the relevant statutory authorities.
(iv)The Proprietors of the Raffles Hotel and their lessees and licensees are expressly authorised by the Strata Company to operate any business permitted by these by-laws and any relevant statutory authority from the Raffles Hotel in a responsible and sound commercial manner.
(v)The Strata Company has discretion to sensibly enforce the by-laws so as to maintain the amenity of the Scheme and permit Proprietors of the Raffles Hotel and their lessees and licensees to manage their businesses in a responsible and sound commercial manner.
(vi)The Scheme includes the Raffles Hotel which will be a Licensed Venue used for the sale and or consumption of alcohol (such as by way of a tavern and or restaurant) and may be used for other Permitted Uses. The uses of the Raffles Hotel will involve activity normally associated with the operation of a tavern and or restaurant. Such activity may disturb neighbouring Residential Lots and is expressly permitted provided it is associated with the Proprietor of the Raffles Hotel and or their lessees or licensees managing their business in a responsible and sound commercial manner and at all times complying with all relevant planning, liquor licensing and environmental controls.
…
25.2Obligations of Proprietor
Each Proprietor of the Raffles Hotel must:
(a)Present and maintain the interior and exterior of the Raffles Hotel to a high standard of finish consistent with the standard and quality of the Scheme;
(b)Use their best endeavours to ensure that:
(i)All commercial or retail uses of the Raffles Hotel are conducted in an orderly and reputable manner; and
(ii)Patrons of the Raffles Hotel comply with all applicable by-laws of the Scheme.
…
25.5Noise and Activities
Proprietors acknowledge that the Scheme includes the Raffles Hotel which will be a Licensed Venue used for the sale and or consumption of alcohol (such as by way of a tavern and/or restaurant) and may be used for other Permitted Uses. The uses of the Raffles Hotel wil1 generate various noise and/or activities which may disturb neighbouring Residential Lots. ·Such noise and/or activities are expressly permitted provided that they are the result of the Proprietor of the Raffles Hotel or their tenant managing their business in a responsible and sound commercial manner and at all times complying with all relevant planning, liquor licensing and environmental controls.
…
9.COMPLIANCE WITH BY-LAWS
A Proprietor must:
…
(c)At the Proprietor's own expense, promptly comply with all laws relating to the Lot including, without limitation, any requirements, notices and orders of the Local Government Authority or any relevant authority; and
…
15.NOISE
…
15.2A Proprietor of the Raffles Hotel must not:
(a)Make undue noise in or about any Lot or Common Property; or
(b)Allow the noise level emanating from its Lot to exceed the level specified from time to time by the Local Government Authority.
15.3Proprietors acknowledge that the Scheme includes the Raffles Hotel which will be a Licensed Venue used for the sale and or consumption of alcohol (such as by way of a tavern and or restaurant) and may be used for other Permitted Uses. The Strata Company has discretion to sensibly enforce the by‑laws so as to maintain the amenity of the Scheme and permit Proprietors of the Raffles Hotel and their lessees and licensees to manage their businesses in a responsible and sound commercial manner.
…
There is also cl 36 which is headed 'Dispute Resolution Procedure'. Without quoting that provision in full, it allows for a party who has an issue as to whether or not a by‑law is being breached to give written notice of dispute. If that is done, the president for the time being of the Law Society is to approve a mediator who will attempt to resolve the dispute. It is common ground between the parties that at no time did the plaintiff give to the strata company any written dispute notice and the dispute procedure provided for has not been utilised.
Neither party relied to any extent on the provisions of the by‑laws. It was not suggested by the defendant for instance that pursuant to by‑law 25.5 or 15.3, the plaintiff was precluded from bringing this action. But the fact the by‑laws exist and must be taken to have been known to the plaintiff, at least indicates that he was aware the Raffles would generate noise from its activities.
The plaintiff's standing to bring the action
Although it is not raised in the defence, the defendant at the commencement of the hearing raised as an issue whether the plaintiff had standing to bring this action. Apartment E501 is owned by Purple Dragon Holdings Pty Ltd as trustee for the Purple Dragon Unit Trust. The plaintiff is the sole director of Purple Dragon and is appointor under the provisions of the trust. It was the defendant's position that as the plaintiff did not occupy the apartment pursuant to a lease with Purple Dragon, he did not have a sufficient proprietary interest in the property to maintain an action in nuisance.
This was a matter raised in Marsh v Baxter to which I have earlier referred. Kenneth Martin J in dealing with this issue said:
Thirdly, the Marshes are seen to complain of 'interference with the use and enjoyment of land' (namely, Eagle Rest) solely owned by Mr Marsh, but used by the Marshes together as land for their farming partnership. There are two strands of authority as to the nature of the proprietary interest in land required to ground a claim in nuisance. The older strand of authority requires the claimant to be an owner of the land subject to the interference in order to have a valid private nuisance claim: see, eg, Oldham v Lawson (No 1) [1976] VR 654, 657. A more recent line of authority suggests that lesser proprietary interests, such as a licence, will be sufficient to ground a claim: see Vaughan v Shire of Benalla [1891] 17 VLR 129, cited in Toll Transport Pty Ltd trading as Toll Customised Solutions v National Union of Workers [2012] VSC 316 [28]; see also Deasy Pty Ltd v Montrest Pty Ltd [1996] QCA 466 (Pincus JA).
Mr and Mrs Marsh, as business partners, held a licence to use the land from Mr Marsh as the owner. I make the assumption of law that the Marshes may both legitimately claim for an unreasonable interference with the use and enjoyment of Eagle Rest land. [351] ‑ [352]
In conformity with his Honour's approach, I am satisfied the plaintiff had a licence to occupy apartment E501 and I make the assumption of law he has standing to bring this claim. To adopt any other approach would fly in the face of reality.
Non‑expert evidence
The plaintiff
The plaintiff confirms he moved into the apartment in May 2009. Between 2009 and 2014, he says he experienced some noise problems but these were confined to Melbourne Cup day and New Years' day and occasional Wednesday and Friday nights. It was after the Raffles re‑opened in December 2014 the plaintiff says his problems began. He says that even with all of the doors and windows shut in his apartment he can hear crowd noise and music coming from the beer garden and upstairs bar. He says the noise in his apartment is 'very loud' especially when the beer garden and upstairs bar are full.
Much of the plaintiff's witness statement (exhibit 4) is taken up with complaints that he made both to the strata management, the hotel itself and the City of Melville (the City), the relevant local authority. He also made a complaint to the relevant liquor licensing authorities. I assume that the purpose of detailing all of these complaints is to show that, over a period of time, the plaintiff maintained a consistent position that the noise emanating from the Raffles was intrusive. That can be accepted. It perhaps supports the proposition that the noise was not just intermittent and the disruption not just limited to a few occasions. Rather, the plaintiff by making regular complaints and pursuing all possible avenues of complaint demonstrated the continuing effects and impact of the noise on him.
In his statement, the plaintiff sets out in par 122 ‑ 138 the impact of the noise upon him. I can do no better than quote these paragraphs in full:
122.My TV/lounge is my primary place of relaxation and is located along the southern boundary of the Apartment and is the nearest room to the Hotel.
123.From years of living in the Apartment and experiencing the noise coming from the Hotel I am able to say that crowd and music noise from the beer garden and upstairs bar penetrates the full length of my Apartment. It travels through the main lounge area at the southern end, the kitchen area in the middle and the master bedroom at the northern end of the Apartment.
124.When the crowd and music noise starts up I have to turn the lounge TV off and move to one of the small bedrooms at the northern western corner of the Apartment.
125.On the days and at the times when the beer garden or upstairs bar are operating, I lose the use of most of my Apartment because the crowd and music noise inside my Apartment is so loud.
126.When the crowd and music noise becomes very loud I usually move to the north-western most bedroom but even then I sometimes have to use industrial strength headphones so that I can read sleep before Hotel closing time. The headphones are quite effective in reducing the noise, but I find that they are very uncomfortable to wear. My sleep is disturbed and disjointed whenever I wear the headphones to get to sleep. If I fall asleep with the headphones I usually find that I wake up a few hours later. If the Hotel is closed I take them off.
127.The crowd and music noise I experience in the Apartment can be so loud at times that even after moving to the north western corner of the Apartment I am unable to read without disruption to my enjoyment. Reading is one of my great passions and pastimes but is out of the question without me using the headphones.
128. From time to time I carry out work on my personal affairs and business affairs at a desk in the Apartment. I am regularly disturbed by the noise from the Hotel and find myself having to defer the work until a time when the beer garden and upstairs bar are not open. This causes me inconvenience.
129.The ongoing noise has made me feel increasingly frustrated, upset and angry. I have tried to remain calm about the situation but on occasions I have not been able to remain calm and have done some silly things which I later regretted. One such incident was the tomato and water bottle incident. I have also yelled at people and spoken badly to people.
130.The emotional upset I feel happens after relentless hammering of my eardrums from the Hotel's activities. I find this impacts on my personality and nature in a very big way. I used to be an easy going person but now I find myself becoming ratty when the noise is loud. I become easily angry and frustrated when I experience the noise coming from the Hotel beer garden and upstairs bar.
131.After nearly two years of trying to do everything I can to obtain some relief from what is for me a nightmare situation, very little has been achieved and I am fearful that I will snap if the situation is not resolved.
132. I have on occasion been accused of being a bully by the Strata Management company because of my numerous complaints to Ms Johns. I make complaints because I am at my wits end and my nerves are frayed from the noise and my disturbed sleep.
133.At my age I find need a lot more sleep than I used to. I do not know whether this is because I am sleep deprived or it is for some other reason. All I know is that the noise being generated by the Hotel not only has a major impact on my capacity to get to sleep and remain sleeping but it is also has a major impact on my ability to live, use and enjoy my home.
134. I find myself becoming ratty and anxious when the noise level is up and I have no way of escaping the noise. I cannot watch TV without the noise impacting my enjoyment, I cannot read a book without some interruption and I cannot listen to music quietly if I choose to do so without the noise affecting my enjoyment.
135. The Apartment has wonderful views from its southern and eastern sides. These areas cop the full brunt· of the noise and often I find that my enjoyment of those views is ruined due to the ongoing noise.
136. The situation has been intolerable for me for many years and continues to be so. I have done everything I can to obtain the City of Melville and RGL to intervene on my behalf and have the noise constrained to permitted use under the Regulations. All my efforts in this regard have not helped and the Hotel continues to operate the beer garden and upstairs bar as it did before.
137. From my years of living in the Apartment since late 2014 I am able to say that the noise level inside my Apartment is exceptionally loud even when the sliding doors to the upstairs bar is closed. When the beer garden and upstairs bars are operating the· music and crowd noise is noticeably louder in my Apartment.
138. When the weather is warmer and the beer garden is full the noise levels of the crowd and music is at its worst and becomes insufferable to me.
These paragraphs are relevant as much for what they do not say as to what they do say. It is clear the plaintiff finds the noise from the Raffles affects his ability to watch television and his ability to read. It also seems that it impacts upon his sleep patterns. But beyond those rather broad parameters, there is no real information about the impact on the plaintiff's lifestyle. There is no evidence as to what television programmes he watches, how the noise impacts upon those television programmes and what steps he takes to overcome the problem. For instance, noise‑cancelling headphones are available and using a wireless system could presumably be employed to overcome the outside noise. It may be these headphones are as uncomfortable as the 'industrial strength headphones' and would not be satisfactory in all the circumstances. But there is no evidence on the point.
There is also no evidence as to what if any steps the plaintiff may have taken to ameliorate the problem. For instance, double glazing might be an option. There is no evidence as to the window treatments on the apartment. Heavy drapes when pulled after dark may muffle the noise. There is no evidence as to whether if the volume on the television is turned up, that cuts out the noise from the Raffles.
There is also no evidence as to other aspects of the plaintiff's life and the effect of the noise upon him. During his closing address, counsel for the plaintiff suggested I could assume the plaintiff was single and lived by himself. That assumption can probably be made but it is not confirmed in the plaintiff's evidence. Nothing is said about how he uses the balconies. It is not difficult to image the plaintiff sitting outside on a balmy summer evening enjoying the view. But there is no evidence that he actually does that. Nor is there any evidence about the effect of the noise on his entertaining. In fact nothing at all is said about visits from family and friends and the effect of the noise on those social occasions.
It is remarkable that the evidence from the plaintiff on this crucial question is so sparse. Prior to the hearing, I was provided with nine lever arch volumes of documents. Really this was not what is sometimes referred to as a 'document heavy' case. The central issue was the effect of the noise on the plaintiff. Most of the documents in the various files were irrelevant. It was almost as though the parties in the interests of completeness had pursued every possible issue while ignoring the one matter which was central to the determination of the case.
If the porosity of the evidence from the plaintiff was not bad enough, the approach of counsel for the defendant bordered on the inexplicable. Not one question was asked of the plaintiff about the interference with his lifestyle by the noise. Not one single question. One of the central planks of the defence was to claim the plaintiff was delicate and fastidious. It seems counsel approached the matter on the basis that the number of complaints and a way in which the complaints were made was sufficient to establish the disposition of the plaintiff. It might reasonably have been thought a series of questions about the plaintiff's habits and interests might have more readily drawn out his personality and character.
There are two matters in relation to the plaintiff's conduct which do require comment. The first relates to an expletive laden rant the plaintiff directed at Ms Jannette Marian Johns (Ms Johns) on 19 October 2015. Ms Johns manages the strata development. She was called by the defendant to give evidence and I will detail her evidence later in these reasons. The plaintiff concedes that during the course of the discussion with Ms Johns, he lost his temper. Ms Johns recorded part of the exchange on her phone and that was played to the court. There is no doubt the plaintiff's behaviour was most unedifying. The plaintiff says the noise had driven him to the point where he simply cracked and the outburst was out of character.
In the end not much turns on this evidence. However, one point can be made. After Ms Johns made her statement and that was passed onto the plaintiff's solicitors, the plaintiff made a supplementary statement. He said effectively he had not used offensive language or been abusive. Once the recording of the rant was played, it was clear that was not right. When asked by his counsel how he could explain the clear discrepancy between what was in the supplementary statement and the recording, the plaintiff said his memory was faulty.
In my view, that evidence cannot be accepted. Having seen the evidence of Ms Johns, the plaintiff must surely have remembered he behaved in an unacceptable fashion. It may well be the plaintiff has a permanent dyspeptic personality. That is certainly the line run by the defendant. But even if that is the case, he must have recalled that he was particularly vitriolic in this exchange. The fact he attempted to put a sanitised version of the meeting in a statement made to the court, does call into question his credibility. Had counsel for the defendant pursued the plaintiff about how the noise from the Raffles affected his lifestyle, it could perhaps have been inferred he was not a credible witness and his evidence was to be doubted. But as I have already noted, no such line of questioning was pursued. So while I am prepared to treat the plaintiff's evidence with some caution, I could not conclude the evidence he gives in the paragraphs quoted above is in some way false or misleading.
The second incident occurred on 11 May 2016. At about 7.30 pm, the plaintiff went down to the Raffles entrance and spoke to the deputy manager Mr Tasmiah Ashraf Chowdhury (Mr Chowdhury). He complained about the noise. The plaintiff said Mr Chowdhury indicated he would not turn down the noise and the plaintiff went back to his apartment and called the police. He says that he was at his wits end and 'very upset and disillusioned' and he threw a number of tomatoes and four or five 375ml water bottles towards the noise‑making equipment in the beer garden. The police subsequently arrived and discussed the plaintiff's conduct with him. No further action was taken.
Once again, this is an unsavoury incident and once again the plaintiff explains it as being behaviour occasioned by the noise. But really it has no influence on the outcome of this case. If the plaintiff's slant on his conduct is to be accepted, it shows the extent to which he has been driven by the noise. If the defendant's slant is to be accepted, it shows a difficult individual prepared to ride rough‑shod over the rights of others. But neither view adds much if anything to the determination of the central issue in this case.
Apart from the comments I have made above about the plaintiff's credibility, I was not in a position to make any assessment of his overall character while he was giving his evidence. He displayed a degree of frustration with a cross‑examination that simply asked him to confirm the contents of a series of documents which spoke for themselves. His frustration was understandable. During cross‑examination, counsel for the plaintiff objected to the line of questioning suggesting it was pointless. I allowed counsel for the defendant to proceed but the line she took - persistent references to clear and largely irrelevant documents - did not advance the defendant's position. That said, the way the plaintiff responded to cross‑examination did not suggest either a fastidious or delicate individual. The plaintiff's background is in science and geology. He struck me as stoic, even tough. But it must be said given the nature of the cross‑examination this was no more than an impression.
Grady Thomas Patching
Mr Patching is the national operations manager for the defendant. He has 21 years' experience in the hospitality industry starting out as a kitchen hand and working his way up to be the chief executive of a national hospitality group.
The defendant is a significant hospitality enterprise. It employs approximately 1600 staff across 22 venues throughout Australia. In Western Australia it operates the Royal on the Waterfront in East Perth, the Colonial Brewing Company in Margaret River and the Print Hall complex in the Perth CBD, along with the Raffles. In his witness statement Mr Patching details the impressive record of the defendant, none of which was questioned by the plaintiff.
Mr Patching detailed his relationship with Ms Johns; he says he has developed a good relationship with her and has encouraged the venue manager of the Raffles to do likewise. He has provided both his contact details and the venue manager's details to Ms Johns so that she can call him at any time of the day or the night if she needs to. The thrust of his evidence is that the defendant has at all times sought to co‑operate with the strata company and to do what it can to enhance the overall Raffles complex. I accept that evidence and it was not disputed by the plaintiff.
Mr Patching says that in 2014 a considerable sum of money was invested in the refurbishment of the Raffles. After the refurbishment, the ground floor or beer garden area was licensed to accommodate 364 persons. The internal ground floor was licensed to accommodate 249 persons; the first floor bar was licensed to accommodate 200 persons and the first floor function room was licensed to accommodate 69 persons. At par 82 of his statement, Mr Patching sets out the steps taken during the course of refurbishment to limit the noise emanating from the Raffles. Those measures included installing an AV sound system which automatically limits the noise emanating from the system. The defendant also replaced the external doors to the balcony in the upstairs area so that the doors were sealed and double‑glazed. A number of other steps were taken but for present purposes these two improvements are of importance. Mr Patching says that although these steps were taken with a view to limiting the noise, he was aware that until the venue started operating again in December 2014, it would not be apparent whether all steps necessary had been taken.
Mr Patching also details steps that were taken to maintain the heritage of the building. His evidence is to the effect the defendant embraced the heritage listing of the Raffles and in working with the State Heritage Office ensured that the redevelopment met all the heritage conditions. Mr Patching also notes that in August of 2014, the owners of the apartments consented to the redevelopment. This consent was passed at an extraordinary general meeting held on or about 12 August 2014.
Approximately six months after reopening, Mr Patching said the defendant engaged an event promoter called DSB Promotions (known as Pineapple Club) to run Wednesday evenings upstairs. These Wednesday nights were targeted and attracted patrons between the ages of approximately 18 - 25. The venue reached capacity on most (if not all) Wednesday evenings and there was usually a queue of patrons waiting to get in. It was around that time complaints about the noise from the owners of the apartments were received. Ms Johns contacted Mr Patching in relation to those complaints. When investigating the complaints, Mr Patching found the hotel management was allowing DJs to bring and use their own AV equipment which was not controlled and limited through the sound system. As soon as he became aware of this, Mr Patching stopped the practice of DJs using their own sound equipment. From about the end of October 2015, all sound was played through the Raffles' sound system. Further, a sub‑woofer which was installed in the first floor ceiling over the balcony was removed. Ultimately DSB Promotions were terminated and a different promotions company called Suited Events was engaged. Mr Patching says that resulted in a targeting of a different demographic - people in their 30s and 40s. In other words, there was a significant change in the focus of the Raffles and the clientele it sought to attract.
On or about 6 January 2016, the Raffles received a letter from the City notifying it that a complaint had been received. The complaint was to do with the noise. The defendant then engaged an acoustic consultant, SLR, to assess the noise the subject of the complaint. SLR was also asked to advise what steps the defendant could take to reduce the noise. As a consequence of that report and a meeting with the chairman of the council of owners of the strata, certain steps were taken in an attempt to limit the noise caused by music and the crowds. These steps are set out in par 154 of Mr Patching's witness statement. It is worth quoting these paragraphs in full.
154.1relocating the DJ booth from the boundary of the beer garden closest to the Raffles Apartments to the northside of the courtyard;
154.2turning off two of the speakers on the façade of the building overlooking the beer garden/courtyard, including the speaker closest to Mr Ammon's apartment (DD215 is a true copy of an email from Digital Living regarding this work);
154.3moving DJs on Fridays and Saturday nights to the inside bar area, rather than outside in the courtyard;
154.4limiting the time DJs play in the courtyard to 10:00pm in the evening;
154.5installed automatic door closers to the doors to the beer garden so that the doors do not remain open (DD348 is a true copy of an email from Mr Miller providing instructions to CLG's contractor to undertake this work);
154.6hiring a bouncer when the River Room is in use, whose sole purpose is to ensure that the door from the River Room to the balcony remains closed (except as required to let people in and out of the River Room);
154.7locking the door on the balcony to the River Room closest to the Raffles Apartments so that it cannot be used for customer or staff access;
154.8relocating the DJ stand inside the River Room away from the wall closest to the Raffles Apartments, with the speakers facing south, away from the Raffles Apartments;
154.9revising the complaints procedure and implementing a new procedure, which included daily contact between the venue manager and the Facilities Manager of the Strata to address any issues or complaints that may have arisen from the night before and the provision of a direct contact number for the venue manager to all residents;
154.10increased security procedures, including comprehensive perimeter checks; and
154.11the implementation of a written noise management plan (DD118 is a true copy of this noise management plan);
154.12a number of major events planned to be held at the Raffles Hotel were abandoned. For example, in 2015 the Raffles Hotel hosted a number of DJ events such as 'Sessions on the River' and 'Pineapple Club'. Despite the success of these events, CLG decided not to continue with them because of the noise issues; and
154.13placing further caps on the limits of the Sound System (DD349, DD350, DD139, DD140, DD141 and DD215 are true copies of emails regarding the further noise limitations).
These steps were not sufficient to placate the City. On or about 18 August 2016, the City issued the defendant with two environmental protection notices. The first of these notices related to 'noise arising from the operations of the mechanical plant situated on the roof of the Raffles Hotel' and the second related to 'noise arising from the playing of amplified music at the Raffles Hotel'. The notices required the defendant to do a number of things. Within 28 days it was to engage an acoustic consultant to investigate the extent and nature of the noise the subject of the notices and prepare a plan for prevention, control or abatement of the noise. Within 35 days it was to submit a copy of that plan to the Chief Executive Officer (CEO) of the City. Within 45 days it was to implement any measures identified in the plan for prevention, control or abatement of the noise emissions the subject of the notices. It was to monitor the effectiveness of any measures implemented for a period of 30 days and within 90 days it was to provide a written report to the CEO of the City prepared by an acoustic consultant in relation to the measures taken. Since the issue of those notices, steps have been taken to deal with the problem of the noise, plant and equipment. This required planning permission from the City which after some delay was obtained and the steps have either been taken or are in the process of being taken. During the course of his opening and closing submissions, counsel for the plaintiff made it plain that it was not the noise emanating from the plant and equipment which was the concern of the plaintiff. He also acknowledged that steps had been and were being taken to ameliorate this noise. The plaintiff's complaint from the first was about the music and the crowd noise.
The defendant has been engaged in discussions with the City about steps which might be taken to limit the noise from the music and the crowd. One possibility being canvassed is the installation of a permanent marquee. Such an alteration to the Raffles would require planning approval from the City and the approval of the Heritage Council. To date this step has not been taken. In fact Mr Patching acknowledged the requirements of the notice in relation to crowd noise and music had not been resolved. When these proceedings were issued solicitors for the defendant suggested to the City that any further steps by the City await the outcome of this action. The City appears to have agreed. In any event to date no prosecutions have been launched.
Mr Patching gave his evidence in a clear and concise manner. He was both impressive and in my opinion entirely honest. It was put to him on a number of occasions by counsel for the plaintiff that the defendant in taking the steps that it has to ameliorate the noise was doing nothing more than attempting to 'fob off' the plaintiff. Mr Patching denied that was the case. He emphasised on a number of occasions the defendant was anxious to be a good neighbour and not cause offence to anyone. He denied the defendant was motivated by profit and would do nothing beyond what was absolutely necessary to ensure any steps taken to limit the noise would not affect its bottom line. I accept his evidence on these issues.
Jannette Marian Johns
Ms Johns is the facilities manager of the strata complex and she has occupied that position for more than nine years. She was originally employed by Brookfield Multiplex who built the apartments. When her contract with Brookfield Multiplex came to an end in March 2015 she started her own company, Raffles FM Pty Ltd, which was then contracted by the strata company of the Raffles complex to be the facilities manager. Ms Johns is very experienced in managing commercial and residential strata complexes. She has been working in the area for approximately 40 years.
In her witness statement Ms Johns details the redevelopment of the Raffles from the point of view of the apartment owners and notes that at the extraordinary general meeting called to approve the redevelopment of the Raffles, the motion was passed without dissent. The plaintiff was present at that meeting. At par 46 - 59 of her statement, Ms Johns details how she dealt with complaints. Essentially, she says she takes a proactive approach and attempts to head off any issues which might arise. My impression of Ms Johns based upon the material contained in her statement and listening to her evidence is that she is a personable individual who attempts to relate to the apartment owners as best she can and resolve all issues which may arise as quickly as possible. She impressed as a lively and intelligent woman who enjoyed the work she did and was determined the complex would run as efficiently as possible.
From par 61 - 90 of her statement, she details the noise complaints made by residents generally and from par 76 onwards concentrates on the complaints from the plaintiff. Ms Johns says after the hotel re‑opening in December 2014 the venue manager at the Raffles was uncooperative. He did not engage with the council of owners and would not return Ms Johns' calls. Ms Johns acknowledges that during this period the relationship between the Raffles and the apartment owners generally was fractious. Ms Johns acknowledges that throughout 2015 there were a series of complaints from residents generally and nothing was done to address those complaints. She acknowledges it was not until Mr Chowdhury's appointment mid‑2016 that things began to change.
In relation to the plaintiff, Ms Johns says that in the period January 2015 until October 2015, the plaintiff made 'two or three verbal complaints' about the noise. She then recounts the incident which occurred on 19 October 2015. Clearly she was very upset by the incident. In fact during the course of cross‑examination when counsel for the plaintiff very fairly put to her the plaintiff's version of events, she broke down. There was no artifice involved; Ms Johns was still traumatised by the incident. After the confrontation with the plaintiff, the only complaint the plaintiff made directly to her was on Melbourne Cup day 2016. Without going into detail, it seems that the plaintiff and Ms Johns had a rather unsatisfactory exchange. While the plaintiff made a number of comments that do not appear to have accurately reflected the position being adopted by the City, the most that can be said is the plaintiff was upset at the prospect of noise emanating from the beer garden as a consequence of the Melbourne Cup day festivities.
In par 122 - 130 of her statement, Ms Johns refers to four apartments located below the plaintiff which overlook the courtyard of the hotel. On or about 11 May 2016, the owners of an apartment directly below the plaintiff complained to Ms Johns about a food throwing incident involving the plaintiff. Ms Johns notes that apart from this complaint, none of the other residents has lodged a complaint about noise with her. It is worthy of note that each of the apartments is below the plaintiff's apartment and would be subjected to noise from the Raffles.
Two further points arise from Ms John's evidence. First, she has observed that a number of residents of the apartments regularly attend the Raffles for meals and drinks. Her evidence on this point is not specific ‑ she gives no details of who attends, the numbers of residents who attend or the frequency with which that occurs. But it can be accepted apartment residents do use the Raffles from time to time. Second, the Raffles sought permission from Ms Johns to deliver meals to residents of the apartments. Ms Johns notes some of the residents are elderly and having meals delivered to them is of assistance. Once again, this evidence is general in nature – there is no indication of how often these meal deliveries may occur or the number of meals that are delivered. However, there is evidence of residents making use of the Raffles' facilities.
Tasmiah Ashraf Chowdhury
Mr Chowdhury is currently the venue manager for the Raffles. He commenced employment with the defendant at the Raffles at the end of 2009. He began by collecting glasses. He was promoted to supervisor in September 2011 and deputy venue manager in June 2014. He was promoted to venue manager mid‑2016. As venue manager he is responsible for all aspects of the running of the Raffles.
Mr Chowdhury confirms the trading hours of the Raffles are from 11.00 am to midnight on Monday to Saturday and 11.00 am to 10.00 pm on Sundays. Occasionally, the venue closes earlier, particularly on slow Monday and Tuesday nights. Occasionally on Sundays during winter the venue will close earlier. Generally speaking the Raffles is open during the hours for which it is licensed.
Mr Chowdhury notes that the beer garden is at its busiest during October to March. That is to be expected. During the winter the beer garden may not operate at all. There is an alfresco bar in the beer garden which operates Wednesday, Friday, Saturday and Sunday during summer. It is rarely operated during the winter. Events are held from time to time in the beer garden. These appear to be limited to such events as Melbourne Cup day, New Years' Eve and New Years' day. The AFL grand final event is a seated event with a sit down lunch.
Upstairs at the Raffles there are two bars/function areas. These are the Riverside Room and the Kitson Room. The Kitson Room is on the Canning Highway side of the premises. It is not open to the general public and is used only for small private functions. The Riverside Room is on the river side of the premises and overlooks the beer garden. It has a balcony. The Riverside Room is used only on Wednesday evenings from 7.00 pm to midnight, the first Friday of each month and if private functions are booked. On Tuesday evenings the Riverside Room is regularly booked for a function by a salsa dancing school to run salsa dancing classes. The attendees usually have a few drinks during the class and then go downstairs to the restaurant to have dinner. During the salsa events, the doors to the balcony of the Riverside Room are closed and the attendees do not go out on the balcony.
On the first Friday of each month, the Raffles hosts a night called 'Flashback Friday'. Usually on these occasions the Riverside Room is open to the general public. Occasionally, Flashback Fridays are held in the beer garden but that is unusual. Mr Chowdhury notes the busiest time for functions at the Raffles is between mid‑November and mid‑January. During that time the Raffles hosts an average of four functions per week. Outside that period the average is two private functions a week. The average number of attendees at private functions is about 70 – 80 people.
There are internal speakers in the Riverside Room. As I have noted above, the speakers along the balcony outside the Riverside Room were removed and permanently disconnected in early 2015. Mr Chowdhury details the operation of the sound system. He confirms the evidence given by Mr Patching. As manager he is able to adjust the sound system up to a designated cap. He notes the sound system is turned on each day and when it is turned on it automatically resets at 70% of the maximum volume. It is then adjusted manually by managers and supervisors throughout the day. No‑one but managers and supervisors can adjust the system.
At par 90 – 103 of his statement, Mr Chowdhury deals with noise complaints. He says he has been instructed by Mr Patching that if a noise complaint is made he is to listen to the complaint and try and resolve the issue as expeditiously as possible. Mr Chowdhury confirms that in the early part of 2015, DJs were able to use their own sound equipment and that a number of complaints were received by the management, both directly from residents and from Ms Johns. Mr Chowdhury confirms that after October 2015, certain steps were taken to limit the noise from the Raffles. He confirms the evidence given by Mr Patching.
Mr Chowdhury details five occasions on which he had complaints from the plaintiff. I do not propose to detail each of these interactions but two matters are worthy of note. First, in November 2016 on Melbourne Cup day the plaintiff approached Mr Chowdhury about 8.30 am before the Raffles was open. He told Mr Chowdhury he (the plaintiff) intended to call the City. Mr Chowdhury says the plaintiff 'was aggressive'. The plaintiff was yelling and swearing. The plaintiff's actions seemed to follow a consistent pattern.
The second point to note is that the same day a Mr Graham Blakey from the City came to the premises. Mr Blakey indicated to Mr Chowdhury he thought the level of music was satisfactory. Later that same day Mr Blakey called from the plaintiff's apartment. As a consequence of the discussion with Mr Blakey, the music was turned down further. When that was done it appears that Mr Blakey found the noise level in the apartment to be satisfactory.
Mr Chowdhury says that as a consequence of the steps taken to limit the noise from the hotel, he has received complaints from DJs and customers that the music is not loud enough. While Mr Chowdhury says these complaints are regular, he does not give any detail as to the frequency with which the complaints are made and who actually complains. He does say that in his view the reduction in volume adversely affects the patronage of the hotel. But Mr Chowdhury is not in a position to provide figures as to what that reduced patronage might be.
The evidence of Mr Chowdhury and his responses under cross‑examination showed he was a careful manager attuned to the obligations of the defendant with respect to noise. He came across as both honest and entirely professional. I have no difficulty in accepting his evidence.
Expert Evidence
George Arthur Watts
Mr Watts is a senior acoustic consultant in the employ of Herring Storer Acoustics (HSA). HSA provide professional acoustic consultancy services including environmental noise assessment, noise monitoring and environmental noise assessment. Mr Watts has a Bachelor of Engineering, he is a member of the Institute of Engineers, Australia and a member of the Australian Acoustical Society. He has over 15 years' experience working in the field of mechanical engineering specialising in acoustics. His qualifications as an expert were not challenged by the defendant.
HSA was first commissioned by the plaintiff in October of 2015. Mr Watts produced a number of reports the first dated November 2015 and the last January 2018. His evidence is largely contained in, and his opinions are based on, those reports. As part of assessing the noise in the plaintiff's apartment, Mr Watts made use of an automatic noise data logger. This is an unmanned device that continually records noise levels via a microphone and stores the data for analysis. The logger records statistical noise level data of which the LA1, LA10, LAeq and LA90 levels are reported.
LA1 The noise level exceeded for 1% of the time (for instance, the noise level exceeded for 36 seconds in each 1 hour period) LA10 The noise level exceeded for 10% of the time (for instance, the noise level exceeded for 6 minutes in each 1 hour period) LAeq The energy equivalent noise level for the period. A single number value that expresses the time varying sound level for the period as though it were a constant sound level with the same total sound energy as the time‑varying level LA90 The noise level exceeded for 90% of the time (for instance, the noise level exceeded for 54 minutes in each 1 hour period) At par 19 of his witness statement, Mr Watts provides a summary of his opinions. This is the crux of his evidence and it is worth quoting what he has to say in full.
19.Taking into consideration all of the statistical noise level data recorded by me on 9 August 2017 using a hand held noise level meter, the logger readings taken from the balcony of the Apartment as set out in the Acoustic Reports dated November 2015, August 2016, June 2017, July 2017, December 2017 and January 2018, discussions with Mr Ammon, my own observations of the Hotel and at the Apartment and on the basis of my 15 years' experience as an Acoustic Consultant, I am of the opinion that:
(a)the operation of the beer garden in the Hotel cannot comply with the noise levels prescribed by the Regulations if it is permitted to operate and to play any music. The crowd noise alone will in all probability exceed the noise levels prescribed by the Regulations;
(b)given the location of the beer garden and proximity of it to the Apartment, there is nothing that can be done to keep the noise level emanating from it being within the prescribed Regulation without substantial mitigation measures taking place. The beer garden likely needs to be closed down as the noise from the crowd alone without any music will probably continue to breach the Regulations;
(c)the operation of the upstairs bar when its doors and windows are open is unlikely to be able to comply with the noise levels prescribed by the Regulations if it is permitted to operate and to play music. The crowd noise alone will, in all probability, exceed the noise levels prescribed by the Regulations.
(d)closing doors and windows to the upstairs bar inside the Hotel will reduce the noise levels;
(e)inside the Hotel noise levels may be able to be limited to a level where the interior of the Hotel could possibly be compliant with the Regulations at the Apartment; and
(f)it is possible to limit the noise level associated with music played inside the Hotel in a way which would reduce the level of noise by the use of a noise limiter attached to the Hotel's amplification system.
Given that Mr Watts' assessment of the noise levels was not seriously challenged by the defendant, it is enough if I give a summary of his evidence by reference to his first report produced in November 2015 (Exhibit 6) and his last report produced January 2018 (Exhibit 14). Under the heading 'Criteria' Mr Watts sets out the following:
2.CRITERIA
The allowable noise level at the surrounding locales is prescribed by the Environmental Protection (Noise) Regulations 1997. Regulations 7 & 8 stipulate maximum allowable external noise levels determined by the calculation of an influencing factor, which is then added to the base levels shown below. The influencing factor is calculated for the usage of land within two circles, having radii of 100m and 450m from the premises of concern.
TABLE 1 – BASELINE ASSIGNED OUTDOOR NOISE LEVEL Premises Receiving Noise Time of Day Assigned Level (dB) LA10 LA1 LAmax Noise sensitive premises 0700-1900 hours Monday to Saturday (Day) 45 + IF 55 + IF 65 + IF 0900-1900 hours Sunday and Public Holidays (Sunday / Public Holiday Day Period) 40 + IF 50 + IF 65 + IF 1900-2200 hours all days (Evening) 40 + IF 50 + IF 55 + IF 2200 hours on any day to 0700 hours Monday to Saturday and 0900 hours Sunday and Public Holidays (Night) 35 + IF 45 + IF 55 + IF Note: LA10 is the noise level exceeded for 10% of the time.
LA1 is the noise level exceeded for 1% of the time.
LAmax is the maximum noise level.
IF is the influencing factor.
It is a requirement that received noise be free of annoying characteristics (tonality, modulation and impulsiveness), defined below as per Regulation 9.
'impulsiveness' means a variation in the emission of a noise where the difference between LApeak and LAmax Slow is more than 15 dB when determined for a single representative event;
'modulation' means a variation in the emission of noise that –
(a) is more than 3dB LAfast or is more than 3dB LAfast in any one‑third octave band. (b) is present for more at least 10% of the representative assessment period; and (c) is regular, cyclic and audible.
'tonality' means the presence in the noise emission of tonal characteristics where the difference between –
(a) the A‑weighted sound pressure level in any one‑third octave band; and
(b) the arithmetic average of the A‑weighted sound pressure levels in the 2 adjacent one‑third octave bands,
is greater than 3dB when the sound pressure levels are determined as LAeq.T levels where the time period T is greater than 10% of the representative assessment period, or greater than 8 dB at any time when the sound pressure levels are determined as LASlow levels. Where the noise emission is not music, if the above characteristics exist and cannot be practicably removed, then any measured level is adjusted according to Table 2 below.
TABLE 2 – ADJUSTMENTS TO MEASURED NOISE LEVELS Where tonality is present Where modulation is present Where impulsiveness is present +5dB(A) +5dB(A) +10dB(A) Where the noise emission is music, then any measured level is adjusted to Table 3 below.
TABLE 3 – ADJUSTMENTS TO MEASURED MUSIC NOISE LEVELS Where impulsiveness is not present Where impulsiveness is present +10dB(a) +15dB(A) The noise sensitive premise identified as a location of concern is shown below. An influencing factor of 7 dB has been calculated at this location based on:
Commercial within 100m +0.75dB Commercial within 450m +0.25dB Major Road within 100m
+6dB Therefore, the assigned noise levels are as listed in Table 4.
TABLE 4 –ASSIGNED OUTDOOR NOISE LEVEL Premises Receiving Noise Time of Day Assigned Level (dB) LA10 LA1 LAmax Balcony of E501, The Raffles 0700-1900 hours
Monday to Saturday52 62 72 0900-1900 hours Sunday and Public Holidays
47 57 67 1900-2200 hours all days
47 57 62 2200 hours on any day to 0700 hours Monday to Saturday and 0900 hours Sunday and Public Holidays 42 52 62 Note: LA10 is the noise level exceeded for 10% of the time.
LA1 is the noise level exceeded for 1% of the time.
LAmax is the maximum noise level.
That then led to a table which is found in a section of the report 'Measured Noise Levels'. The table reads as follows:
TABLE 5 –MEASURED NOISE LEVELS
| Time/Date | Measured LA30 Noise Level, dB(A) | Primary Noise Source |
| Friday – 23/10/15 – 0700-1900 | 65-67 | Road Noise, Environmental |
| Friday – 23/10/15 – 1900-2200 | 67-70 | Crowd, Road Noise |
| Friday – 23/10/15 – 2200-0000 | 68-70 | Crowd, Music |
| Saturday – 24/10/15 - 0700-1500 | 64-66 | Road Noise, Environmental |
| Saturday – 24/10/15 – 1500-1900 | 77-81 | Music |
| Saturday – 24/10/15 – 1900-2200 | 70-75 | Music |
| Saturday – 24/10/15 – 2200-0000 | 64-69 | Music, Crowd Noise |
| Wednesday – 28/10/15 – 0700-1900 | 64-66 | Road Noise, Environmental |
| Wednesday – 28/10/15 – 1900-2200 | 67-73 | Music, Crowd Noise |
| Wednesday – 28/10/15 – 2200-0000 | 67-71 | Music, Crowd Noise |
Following on from those measurements, Mr Watts made what he describes as an 'assessment' of what he had found. This reads as follows:
5.Assessment
Based on the above information, noise levels from received at E501, The Raffles , are generally in the range of 64 to 66 dB(A). This is attributed to the high volume of traffic utilising Canning Highway.
However, noise associated with the Raffles Hotel varies above this level with noise attributable to both the beer garden and the upstairs bar, with either crowd noise or music being the dominant source, depending on time and date.
As of such, the following situations and representative time periods have been considered:
i.Noise from crowd and light ambient music ‑ These operations occur in the early afternoon, often continuing in the evening and nights on Friday, Saturday and Wednesday. Music is audible infrequently, however crowd noise is the dominant noise sources. Noise levels are in the range of 67 to 70 dB(A).
These emissions contain no annoying characteristics and music is not audible sufficiently to attract adjustments applicable to music noise emissions. This does not include any emissions from live music or bands.
ii.Noise from crowd and 'dance' music ‑ These operations occur in the evening and often continue into the night of, primarily, Saturdays. Music is audible and the primary source of noise and as a result, attracts an adjustment applicable to music noise emission. Noise levels are in the range of 75 to 80 dB(A).
Turning then to the report of January 2018, as to be expected the assigned outdoor noise level 'the assessment' made by Mr Watts was as follows:
4.ASSESSMENT
The noise levels during the typical periods where the Raffles Hotel is understood to be well patronised have been analysed, with the audio for each identified time period listened to and reviewed to ascertain the noise emission at this time.
The typical periods for review have been identified as Wednesday evenings/nights, Friday evenings/nights, Saturday evenings/nights and Sunday afternoons.
These time periods for analysis were determined through perusal of advertising material for the Raffles Hotel (ie promotions) and analysis of the data collected over time at the apartment.
The typical range of noise levels for each identified time period are presented below in Table 4.1. The time periods below as defined by the Environmental Protection (Noise) Regulations 1997, with the Sunday afternoon taken as 5pm for ease of analysis. Typically, the noise level at around 9pm was utilised as typical of the 'evening' period and 11pm for the 'night' period.
TABLE 4.1 – NOISE LEVEL EMISSIONS BASED ON NOISE LOGGER DATA, DB(A) Day/Time Period Day Time Period Measured Noise Level, LAS10,dB Wednesday Evening 66 ‑ 69 Night 62 ‑ 68 Friday Evening 67 ‑ 71 Night 64 ‑ 68 Saturday Evening 66 ‑ 69 Night 64 ‑ 68 Sunday Afternoon 65 - 67 The audio of each time period has been listened to and ascertained to contain patron and music noise. Hence, the measured noise levels in accordance with the Environmental Protection (Noise) Regulations 1997 have been assessed as 'music' with no impulsive characteristics. Hence, the applicable adjustment is +10 dB(A).
It is noted that, at times, the music noise may exhibit impulsive characteristics, however, for the purposes of this assessment we have assumed that there are no impulsive characteristics present.
Table 4.2 below summarises the applicable adjustments for annoying characteristics. It is noted that to simplify the presentation of the analysis, only the lower noise level of the range for each identified measurement period has been included. This ensures a conservative assessment of the noise impact of the Raffles Hotel based on the monitored noise data.
TABLE 4.2 – APPLICABLE ADJUSTMENTS FOR ANNOYING CHARACTERISTICS, dB(A) Measurement Details Adjustment to music noise emissions Day Period Measured Noise Level, LAS10, dB Where impulsiveness is not present Where impulsiveness is present Assessable Noise Level, LAS10, dB Wednesday Evening 66 +10 - 76 Night 62 +10 - 72 Friday Evening 67 +10 - 77 Night 64 +10 - 74 Saturday Evening 66 +10 - 76 Night 64 +10 - 74 Sunday Afternoon 65 +10 - 75 Based on the above, Table 4.3 summarises the applicable Assigned Noise Levels, for the pertinent time period and assessable noise level emissions.
TABLE 4.3 – ASSESSMENT OF NOISE LEVEL MEASUREMENTS Measurement Details Day Period Assessable Noise Level, dB(A) Applicable Times of Day Applicable LA10 Assigned Level (dB) Exceedance to Assigned Noise Level (dB) Wednesday Evening 76 Evening 48 + 28 Night 72 Night 43 + 29 Friday Evening 77 Evening 48 + 29 Night 74 Night 43 + 31 Saturday Evening 76 Evening 48 + 28 Night 74 Night 43 + 31 Sunday Afternoon 75 Sunday/Public Holiday Day Period 48 + 27 As can be seen from the above tabulation, based on the monitored noise levels, noise level emissions associated with the Raffles Hotel have been determined to exceed the assigned noise levels for the identified time periods.
There can be no doubt based upon Mr Watts' evidence that the noise levels he recorded in the plaintiff's apartment exceeded the allowable levels under the relevant regulations. What is more difficult to assess is the extent to which the noise exceeding the regulations affected the plaintiff's lifestyle. Put another way, the evidence of Mr Watts is largely quantitative rather than qualitative. The issue is the extent to which the noise emanating from the Raffles affects the plaintiff. The fact that the noise is above levels permitted by the Regulations is not necessarily determinative of the central issue in this case.
Rebecca Kay Ireland
Ms Ireland is an environmental scientist with over 20 years' experience specialising in the field of acoustics. She holds a Bachelor of Science degree and is a member of the Australian Acoustical Society. She is employed by EcoAcoustics, a firm specialising in measuring noise levels. Ms Ireland's qualifications were not challenged by the plaintiff.
Essentially, Ms Ireland undertook a critique of the reports prepared by Mr Watts. She did not undertake any independent measurements of the noise levels in the plaintiff's apartment. She did raise a number of concerns about Mr Watts' evidence and these are set out in her witness statement (Exhibit J). In response to this critique, Mr Watts produced a responsive statement dated 28 March 2018 (Exhibit 16). Without going through the respective positions of the parties, it is enough if I say in the end Mr Watts was able to answer all criticisms made of his reports by Ms Ireland. There was nothing in Ms Ireland's evidence which would undermine or derogate from the evidence given by Mr Watts.
Courtney Gibson
Mr Gibson is an accountant in the employment of Grant Thornton. When detailing his instructions from the defendant's solicitors, Mr Gibson says:
Further, I have been instructed to provide an opinion, set out in a report for use in these proceedings, on the impact on the financial performance of the Hotel Business were it no longer permitted to operate the Beer Garden and the Riverside Room, including any impact on the operation of other sections of the Hotel (namely, the downstairs restaurant or Kitson Room).
Given the relief sought by the plaintiff, the evidence of Mr Gibson was not relevant to the overall resolution of this action. I would note in passing that it is doubtful whether the economic impact on the defendant of orders made if the plaintiff established there was a nuisance is relevant to the overall disposition of the case.
Philip John Griffiths
Mr Griffiths is an architect who first was registered in Western Australia in 1984. In that year he co‑founded the firm Considine and Griffiths Architects and subsequently founded Griffiths Architects in 2005. He has overseen a broad scope of work providing advice to Federal and State governments, local councils and governing bodies, private and corporate clients, preparing conservation plans, master plans as well as carrying out conservation and adaptation works to Government House, the WA Ballet Centre, the Archbishops Palace, Fremantle Prison, Dumas House, Parliament House and Rottnest Island. At the commencement of his cross‑examination, counsel for the plaintiff indicated that the plaintiff accepted Mr Griffiths' evidence.
Mr Griffiths follows the history of the Raffles and notes its entry on the register of heritage places. He notes that inclusion on the State register signifies a building has aesthetic value, historic value, scientific value and social value in terms of significance to the State. During the course of his report, Mr Griffiths notes:
36.Sustaining the use for which the place was designed has the capacity to sustain all the values for which it was registered and is by far the best way of conserving a place. On occasion, change of use is the best means for conservation where a building has become redundant, but this generally results in the diminution of some values.
Mr Griffiths also deals in some detail with the beer garden. He says:
44.Most of these hotels included an outdoor area that were later termed beer gardens. The area to the north of the Raffles Hotel was described in Building and Construction Journal of December 1937 in details and also claimed to be the first biergarten. Beer gardens have been under development pressure in many hotels and were somewhat less common by the late twentieth century and have made something of a comeback in the early twenty first century. With the general trend back towards outdoor hospitality and entertainment. In my own experience at the Subiaco Hotel, we removed a large beer barn to recover something the garden notion in work completed in 1993.
45.Beer gardens in Australia were traditionally where families might go for refreshment. The bars and lounges typically excluded children and the dining room was too formal for many occasions.
46.Beer gardens became part of the social values of hotels and social value is one of the values for which a place might be included in the Register.
Much of Mr Griffiths' evidence seems to anticipate the closure of the Raffles entirely. While there is no evidence that would be the outcome of the orders sought by the plaintiff, it is perhaps worth noting Mr Griffiths' conclusion:
59.The loss of the existing use would diminish heritage value. A change of use would have a degree of impact on heritage values and diminish social values. Total loss of the place would result in the loss of a landmark and all the things for which the place is held in high regard by the community.
Disposition
To adopt what was said by Pullin JA in the Southern Properties decision, the question here is whether the plaintiff has established a substantial and unreasonable interference with his beneficial use of his apartment by noise emanating from the Raffles. As His Honour noted, it is the effect on the plaintiff which is important. There is no question of unreasonable behaviour on the part of the defendant.
There are two main factors which favour the plaintiff. The first is that he says his enjoyment of the occupancy of his apartment is being adversely affected by noise from the Raffles. As I have indicated above, one of the difficulties with this case is the lack of any detailed evidence from the plaintiff on this issue and the lack of any cross‑examination. That being so, I must conclude that there is interference with the plaintiff's enjoyment of his apartment. The difficult question is whether that interference is 'substantial' and 'unreasonable'.
The main evidence in support of the plaintiff's contention is the fact that the noise levels as measured by Mr Watts exceed the noise levels permitted by the Regulations. That is not in and of itself determinative. It is but one factor to be taken into account and when it is taken into account, it favours the plaintiff's position.
So far as the defendant is concerned, they appear to advance two propositions. The first is that the plaintiff is a fastidious and delicate individual who has adopted an unreasonable position. As I have noted earlier in these reasons, insofar as I was able to assess the plaintiff under cross‑examination, he did not strike me as such a person. His behaviour from time to time – particularly in relation to Ms Johns – leaves something to be desired. But I am unable to conclude from that behaviour that he is adopting an unreasonable position.
The second proposition advanced by the defendant is somewhat more difficult to define. It appears to be to this effect. Other than the plaintiff, no‑one in the apartments, including those who are closer to the beer garden and the function rooms, has complained about the noise. They may have complained in the past but once Mr Chowdhury in conjunction with Mr Patching addressed their concerns, the problem was solved. Given the history of the Raffles and the way it is presently run, any interference with the plaintiff's occupation of his apartment is neither unreasonable nor substantial.
It is this second submission which I accept. The plaintiff has failed to make out his case. While I will accept that there is some interference with his occupation of the apartment, consistent with his evidence and while I accept the noise level does appear to be in excess of the level allowed under the regulations, I am not satisfied the interference is substantial and unreasonable. The lack of detailed evidence from the plaintiff on this issue is one factor. There is a wider question of factors which need to be taken into account when assessing a case such as this.
The plaintiff chose to buy an apartment in a development which had, leaving the Raffles to one side, a high level of ambient noise. There was the freeway to the east and Canning Highway to the south. With those busy thoroughfares, there was always going to be a background hum of ambient noise without any other factor. When the plaintiff bought his apartment, he was aware that the Raffles operated as an entertainment venue and had operated in that way for many years. He could not have known precisely what level of noise would emanate from the hotel. But he must has been aware that there would be some noise. Any hotel plays music. The plaintiff could not have expected anything else. There does appear to have been a stage when the music emanating from the Raffles was so loud that not only was the plaintiff affected but other residents were also affected. But changes were made by Mr Patching and Mr Chowdhury. Now the noise from the hotel is consistent with what is reasonable and what the plaintiff could have anticipated when he purchased his apartment. For these reasons I am not satisfied the claim in nuisance is made out.
Even if I were satisfied the plaintiff had established nuisance, I would not have granted the injunction sought. Earlier in these reasons, I noted the judgment of the English Court of Appeal in Miller v Jackson [1977] QB 966 which was referred to in Cohen. It is instructive to look a little more closely at that decision. The facts were set out by Lord Denning MR as follows:
In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last 70 years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short. It has a good club‑house for the players and seats for the onlookers. The village team play there on Saturdays and Sundays. They belong to a league, competing with the neighbouring villages. On other evenings after work they practise while the light lasts. Yet now after these 70 years a judge of the High Court has ordered that they must not play there anymore. He has issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of cricket. This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket. But now this adjoining field has been turned into a housing estate. The newcomer bought one of the houses on the edge of the cricket ground. No doubt the open space was a selling point. Now he complains that when a batsman hits a six the ball has been known to land in his garden or on or near his house. His wife has got so upset about it that they always go out at weekends. They do not go into the garden when cricket is being played. They say that this is intolerable. So they asked the judge to stop the cricket being played. And the judge, much against his will, has felt that he must order the cricket to be stopped: with the consequence, I suppose, that the Lintz Cricket Club will disappear. The cricket ground will be turned to some other use. I expect for more houses or a factory. The young men will turn to other things instead of cricket. The whole village will be much the poorer. And all this because of a newcomer who has just bought a house there next to the cricket ground.
…
On the one hand, Mrs Miller is a very sensitive lady who has worked herself up into such a state that she exclaimed to the [trial] judge: 'I just want to be allowed to live in peace. Have I got to wait until someone is killed before anything can be done?' If she feels like that about it, it is quite plain that, for peace in the future, one or other has to move. Either the cricket club has to move: but goodness knows where. I do not suppose for a moment there is any field in Lintz to which they could move. Or Mrs Miller must move elsewhere. As between their conflicting interests, I am of the opinion that the public interest should prevail over the private interest. The cricket club should not be driven out…The club were entitled to use this ground for cricket in the accustomed way. It was not a nuisance, nor was it negligent of them so to run it. Nor was the batsman negligent when he hit the ball for six.
His Lordship then examined the history of the law of nuisance. Of particular significance was the decision of the Court of Appeal in Sturges v Bridgman (1879) 11 Ch. D 852. Geoffrey Lane LJ who dissented in this case summed up the effect of that decision as follows:
The defendant had carried on a confectionery shop with a noisy pestle and mortar for more than 20 years. Although it was noisy, it was far enough away from neighbouring premises not to cause trouble to anyone, until the plaintiff, who was a physician, built a consulting room on his own land but immediately adjoining the confectionery shop. The noise and vibrations seriously interfered with the consulting room and became a nuisance to the physician. The defendant contended that he had acquired to right either at common law or under the Prescription Act 1832 by uninterrupted use for more than 20 years to impose the inconvenience.
Lord Denning MR had no difficulty in side‑stepping the decision of Sturges v Bridgman. His Lordship said:
In this case it is our task to balance the right of the cricket club to continue playing cricket on their cricket ground as against the right of the householder not to be interfered with.
Of course there are differences between this case and Miller v Jackson. But here too it is a question of a balancing exercise. Perhaps the respondent in Miller v Jackson when purchasing his property did not anticipate there would be so many balls hit over the fence. He may not have appreciated there was a risk of injury from these flying cricket balls. But the fact remains he purchased near a cricket ground. The plaintiff may not have anticipated the level of noise that presently emanates from the Raffles but he bought next to a hotel. To now seek to shut down the operations of that hotel, even to the limited extent now sought, is not in my view appropriate.
What the evidence of Mr Patching and Mr Chowdhury made plain is that the defendant has adjusted its business to take into account complaints about noise. Really their evidence was to the effect that the Raffles is now being operated in a way which is consistent with sound management of such a venue. Just as cricket players could not be expected to refrain from hitting sixes, the management of the Raffles cannot be expected to restrict the operation of a venue which is inconsistent with the orderly and proper use of that venue. That is the case here and it is, in my view, a compelling reason against issuing an injunction.
Accordingly, I would dismiss the plaintiff's claim. I will hear the parties as to the form of orders and to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DG
ASSOCIATE TO MASTER SANDERSON
7 SEPTEMBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: AMMON -v- COLONIAL LEISURE GROUP PTY LTD [2018] WASC 280 (S)
CORAM: MASTER SANDERSON
HEARD: ON THE PAPERS
DELIVERED : 4 NOVEMBER 2019
FILE NO/S: CIV 2449 of 2017
BETWEEN: DEREK NOEL AMMON
Plaintiff
AND
COLONIAL LEISURE GROUP PTY LTD
Defendant
Catchwords:
Costs - Application for special costs order - Turns on own facts
Legislation:
Legal Profession (Supreme Court) (Contentious Business) Determination 2016 (WA)
Legal Profession (Supreme Court) (Contentious Business) Determination 2018 (WA)
Legal Profession Act 2008 (WA), s 280(2)
Rules of the Supreme Court 1971 (WA), O 66 r 1
Supreme Court Act 1935 (WA), s 37
Result:
Limits lifted on items conceded by the plaintiff
Application for special costs order otherwise dismissed
Costs associated with this application to be paid by the defendant
Category: B
Representation:
Counsel:
| Plaintiff | : | No appearance (on the papers) |
| Defendant | : | No appearance (on the papers) |
Solicitors:
| Plaintiff | : | JDK Legal Services Pty Ltd |
| Defendant | : | Lavan |
Case(s) referred to in decision(s):
Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158
Apache Oil Australia Pty Ltd v Santos Offshore Pty Ltd [2015] WASC 318 (S)
Kidd v The State of Western Australia [2015] WASCA 62 (S)
MASTER SANDERSON:
This action was commenced by writ of summons filed 30 August 2017. The plaintiff sought an injunction restraining the defendant, as operator of the Raffles Hotel, engaging in conduct which created a nuisance at certain times of the evening. The plaintiff subsequently filed a chamber summons on 4 September 2017 seeking interlocutory relief. That application was heard over two days – 1 November 2017 and 14 November 2017. At the conclusion of the hearing I dismissed the plaintiff's application for interlocutory relief and published reasons on 17 November 2017. The action proceeded to trial in May 2018 and on 7 September 2018 I made orders that the action be dismissed and the plaintiff pay the defendant's costs of the action, and of the interlocutory injunction application (including costs of conferral) and any reserved costs. The defendant was granted leave to file and serve any application for special costs orders by 27 September 2018.
Consideration of the issue of costs was deferred until the hearing of an appeal. On 17 October 2019 the appeal was dismissed: Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158.
In relation to costs, the defendant now seeks orders that:
1.the defendant's costs of the action should be taxed without the limitations imposed by:
1.1the maximum hourly rates fixed under Table A of the Legal Profession (Supreme Court) (Contentious Business) Determination 2016 (WA) and the Legal Profession (Supreme Court) (Contentious Business) Determination 2018 (WA);
1.2the maximum allowances for time, number and experience of the fee earners or total costs under items 3(a), 3(b), 7(a), 7(b), 8, 10(a), 10(b), 10(c), 16(a), 16(c), 17, 20(a), 20(c), 20(e), 20(f), 20(h), 24 and 25(a) of Table B of the Legal Profession (Supreme Court) (Contentious Business) Determination 2016 (WA); and
1.3the maximum allowances for time, number and experience of the fee earners or total costs under items 20(h) and 20(b) of Table B of the Legal Profession (Supreme Court) (Contentious Business) Determination 2018 (WA); and
2.the plaintiff pay the defendant's costs of conferral incurred in connection with this minute and the application for special costs orders foreshadowed sought by the defendant.[2]
[2] Defendant's minute of proposed orders dated 24 October 2018.
The effect of the form of orders sought by the defendant is to permit the taxing officer to award costs without being limited by the applicable costs determination in respect of the general hourly rates for particular classes of practitioner, the maximum amount specified in respect of various items, or the maximum hours specified in relation to those items.
For his part, the plaintiff does not oppose a special costs order relating to the maximum allowable in relation to items 7(b), 10(a), 17 and 20(a) in Table A. The plaintiff says the non‑opposition in relation to these items is on the basis that there is a fairly arguable case to be presented to the taxing officer that the costs might reasonably, but not inevitably, tax at an amount higher than the scale. The plaintiff emphasises that in not opposing orders in relation to those items, there is no express or implied concession the taxing officer must allow an amount in excess of the scale for those items. That is clearly correct.[3]
[3] Plaintiff's written submissions filed 26 November 2018 at par 2 – 3.
Costs in civil proceedings are at the discretion of the court: see Supreme Court Act 1935 (WA) s 37; Rules of the Supreme Court 1971 (WA) O 66 r 1. However, s 280(2) of the Legal Profession Act 2008 (WA) does allow for what is often referred to as a special costs order. That subsection is in the following terms:
(2)Despite subsection (1), if a court or judicial officer is of the opinion that the amount of costs allowable in respect of a matter under a costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter, the court or officer may do all or any of the following -
(a)order the payment of costs above those fixed by the determination;
(b)fix higher limits of costs than those fixed in the determination;
(c)remove limits on costs fixed in the determination;
(d)make any order or give any direction for the purposes of enabling costs above those in the determination to be ordered or assessed.
The parties are in agreement that the two components of the opinion which the court must form to make special costs orders under the subsection are satisfied. These components are that the amount of the costs allowable in respect of a matter under a costs determination is inadequate and that this inadequacy is because of the importance of the matter to the parties. In Apache Oil Australia Pty Ltd v Santos Offshore Pty Ltd [2015] WASC 318 (S) Chaney J observed that:
The concession by the plaintiffs that the limits imposed by at least some items of the costs determination should be removed is, in effect, an acknowledgement that the prerequisites to the exercise of discretion under s 280(2) have been met [11].
The defendant says the plaintiff's concession as to some of the items means that the 'gateway' criteria of s 280(2) are satisfied. By par 17 of its written submissions, the defendant seems to suggest once the gateway criteria are satisfied the question whether the proceedings as a whole can be characterised as unusually difficult, complex or important is to be assessed. There is to be no assessment, so the defendant submits, of particular items.[4] The plaintiff argues that as the defendant is seeking orders with reference to particular items, each item needs to be considered in isolation.[5]
[4] Defendant's written submissions filed 12 November 2018 at par 17 – 19.
[5] Plaintiff's written submissions filed 26 November 2018 at par 8 – 11.
The plaintiff's submissions on this issue ought be accepted. In part at least, the two issues overlap. But it makes no logical sense to make an assessment of costs in a global sense when some parts of the case may involve matters of difficulty or complexity while other parts of the case may be straightforward. The defendant seems to recognise that by referring to particular items. Furthermore, that fits in with the nature of this case.
This case was of particular importance to the defendant. What the plaintiff sought was an injunction which would have limited the defendant's trading activities. Expert evidence was led on that issue and it was clear the limitations sought by the plaintiff would have had a significant financial consequence for the defendant to the point where the viability of its business may have been called into question. But the case was not one of unusual difficulty or complexity. The argument put by the plaintiff was that the noise emanating from the hotel affected his enjoyment of the unit he occupied in the Raffles complex. The suit was brought in nuisance. The law in relation to nuisance is relatively straightforward - no new principles were advanced. Effectively the law is settled. Nor was the evidence complex. The plaintiff said the noise was intolerable and was affecting his enjoyment of life. The defendant argued the reverse. True it is that both parties called experts in relation to the noise levels and some of the expert evidence was, in a technical sense, complicated. But really there was not much dispute between the experts. While the case extended over a number of days, it was not an action which could be described as 'document heavy'. The ultimate question was simple - did the facts give rise to a nuisance which would justify the issue of an injunction?
The defendant's strongest argument in favour of a special costs order is the fact that the hearing of the matter was expedited. That said, it was on 14 November 2017 I indicated to the parties an early trial should take place and 2 May 2018 was when the trial commenced. That means there were five months available to the parties to prepare for trial. Given I am not satisfied this was a matter of particular complexity or difficulty, that time frame does not, in my view, in and of itself require a special costs order.
Taken in the overall, I am not satisfied the defendant has made out a case for a special costs order in relation to matters not conceded by the plaintiff. In approaching this matter this way I am mindful of what the Court of Appeal said in Kidd v The State of Western Australia [2015] WASCA 62 (S). To examine each of the items in turn would not assist. All that can really be said in relation to each of the items is that I am not satisfied the difficulty and complexity was such as to warrant a special costs order. The fact the case was of particular importance to the defendant plays out in a different way. It cannot in and of itself mean the time spent was justified. There is only so much that can be achieved in relation to litigation no matter how much time is spent. It is perhaps an illustration of the law of diminishing returns. Either way and even if particular items are examined, I am not satisfied the orders sought by the defendant are justified.
On that basis I will make orders lifting the limits on the items conceded by the plaintiff. Otherwise the application for the special costs order will be dismissed. The costs associated with this application should be paid by the defendant.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DG
Associate to Master Sanderson
4 NOVEMBER 2019
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