Anderson v City of Stonnington (No 2)
[2016] VSC 575
•27 September 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
S CI 2014 05027
| JOHN RAYMOND ANDERSON and DEMITRA ANDERSON | Plaintiffs |
| v | |
| CITY OF STONNINGTON | First Defendant |
| -and- | |
| VICTORIAN RAIL TRACK | Second Defendant |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 August 2016 |
DATE OF JUDGMENT: | 27 September 2016 |
CASE MAY BE CITED AS: | Anderson & Anor v City of Stonnington & Anor (No 2) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 575 |
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ROADS — Laneway — Where judgment delivered on part-heard trial — Where reasons for judgment held laneway is a road under the Local Government Act 1989 — Where plaintiffs erected fence across laneway while judgment reserved — Where council issued summons seeking order to have fence removed — Where order a natural consequence of judgment — Local Government Act 1989, ss 207, 225, cl 5 of Schedule 11
COSTS — Calderbank offer — Rejection of council’s offer to settle proceeding — Whether rejection was unreasonable in the circumstances — Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr R M Garratt QC with Mr J Stavris | Frenkel Partners |
| For the First Defendant | Mr R Knowles | Maddocks |
| For the Second Defendant | Mr S Hopper | VicTrack |
HER HONOUR:
Introduction
By summons filed 26 July 2016, the first defendant seeks orders that the plaintiffs remove a fence erected across the western end of a laneway within its municipal district and make good any damage to the laneway caused by the erection of the fence. The laneway runs between William Street and Lovers’ Walk in South Yarra.
On 1 July 2016, I delivered reasons for judgment in which I concluded that the laneway is a public highway at common law and is a road within the meaning of the Local Government Act 1989 and the Road Management Act 2004.[1] In doing so, I refused to make certain declarations that were sought by the plaintiffs.
[1]Anderson & Anor v City of Stonnington & Anor [2016] VSC 374 (1 July 2016) [91]. Unless otherwise stated, I have adopted the terms and definitions used in those reasons.
Preliminary matters
Two procedural issues were raised during the hearing on 31 August 2016. The first was raised by the plaintiffs, who, as well as resisting the orders sought by the first defendant, sought to amend the pleadings to include an incident that occurred on the plaintiffs’ property on 18 March 2016.[2] The amendment relates to the plaintiffs’ action in nuisance against the second defendant, which has not yet been heard. The parties agreed to stand this issue over pending the determination of an appeal brought by the plaintiffs from the reasons for judgment delivered on 1 July 2016.
[2]For an account of the 18 March incident, see [25] below.
The second procedural issue was raised by the first defendant, who, in addition to the orders sought in the summons, seeks orders that the proceeding be dismissed with costs insofar as the proceeding relates to it. Counsel for the first defendant submitted that this was the natural conclusion of the 1 July judgment, in which the defendants were ultimately successful. It was submitted that the case against the first defendant did not go further than the declarations as to the legal status of the laneway. Given that those declarations have now been refused and that the plaintiffs’ action in nuisance is solely against the second defendant, it followed that the first defendant had no further part to play in the proceeding and should be allowed to depart with its costs.
The second defendant indicated that it had no objection to the proceeding being dismissed as against the first defendant, save for one issue. That issue relates to the second defendant’s opportunity to seek contribution from the first defendant for damages payable to the plaintiffs should the plaintiffs’ claims in nuisance be upheld. The problem arises out of the plaintiffs’ further amended statement of claim, which currently claims damages and interest against the first defendant, presumably in nuisance. The second defendant submitted that, if the proceeding is dismissed against the first defendant, then the plaintiffs’ claim for damages against the first defendant in the further amended statement of claim may preclude the second defendant from seeking contribution by reason of the principles of res judicata or issue estoppel.
As a solution to this problem, the second defendant proposed that the plaintiffs’ claim for damages against the first defendant be struck out before the proceeding is dismissed as against the first defendant. The first defendant agreed to this course.
The plaintiffs raised some concerns about the dismissal of the proceeding as against the first defendant. They submitted that removing the first defendant from the proceeding may cause unnecessary procedural difficulties in the future, particularly if they were successful on appeal. However, senior counsel for the plaintiffs conceded that those concerns fell away once it was accepted that any order dismissing the proceeding against the first defendant would be overturned by the Court of Appeal if the appeal was successful. In effect, the first defendant will remain in the proceeding should the plaintiffs’ claims for declaratory relief require reopening, so the concerns raised by the plaintiffs provide no basis on which to refuse the order dismissing the proceeding against the first defendant.
Costs of the proceeding against the plaintiffs
As to costs, the first defendant seeks an order that its costs be paid by the plaintiffs on the standard basis up to 21 July 2015 and on an indemnity basis thereafter. In respect of the indemnity costs, it relies on a letter dated 6 July 2015 from its solicitors to the plaintiffs through their former solicitors, Simon Nixon & Associates (‘the 6 July offer’). In that letter, the first defendant offered to settle the proceeding on terms that included, inter alia, that the proceeding be dismissed with no order as to costs. The offer was open to be accepted until 21 July 2015. The letter referred to Calderbank v Calderbank and other cases[3] and warned the plaintiffs that the first defendant would seek indemnity costs against them should they receive a judgment ultimately less favourable than the offer. There is no evidence of any response to the 6 July offer on behalf of the plaintiffs whatsoever.
[3]Calderbank v Calderbank [1975] 3 All ER 333; Cutts v Head [1984] Ch 290; Mutual Community Ltd v Lorden Holdings Pty Ltd (Unreported, Supreme Court of Victoria, Byrne J, 28 April 1993).
On the issue of costs, the plaintiffs accepted that the ordinary rule would apply, entitling the first defendant to a costs order against them on the standard basis. However, senior counsel for the plaintiffs rejected the first defendant’s attempt to rely on the 6 July offer as the basis for an entitlement to indemnity costs. It was submitted that the 6 July offer overreached in what it sought from the plaintiffs. In that regard, the plaintiffs relied on the following paragraph in the 6 July offer:
1.1Council offers to settle the proceeding on the following basis:
…
1.1.3Your clients:
(a)release and forever discharge Council from any and all causes of action brought by them in this proceeding; and
(b)undertake and covenant not to sue Council for trespass, nuisance, negligence or any like cause of action arising from the actions of any person not connected to the Council that enter upon the land the subject of this proceeding …
The plaintiffs say that the relief the first defendant sought in paragraph 1.1.3 of the 6 July offer could never be obtained in this proceeding. Furthermore, the judgment delivered on 1 July 2016 does not give the first defendant the equivalent of that relief, particularly the undertaking in subparagraph (b). It follows that it cannot be said that the judgment was ultimately less favourable to the plaintiffs than the 6 July offer.
In response to that submission, counsel for the first defendant noted that at the time the offer was made the pleadings contained a claim for trespass against the first defendant, which explained the inclusion of the several causes of action in paragraph 1.1.3 of the 6 July offer. Any reliance on those causes of action was abandoned by the plaintiffs before the commencement of the trial in March this year.
When considering the effect of a Calderbank offer, the correct approach is to treat the rejection of it as a matter to which the court should have regard when considering whether to order indemnity costs. The critical question is whether the rejection of the offer is sufficient to establish an order for indemnity costs being made, with the answer to this question depending upon whether the rejection of the offer was unreasonable in the circumstances.[4]
[4]Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435, 440–1 (Warren CJ, Maxwell P and Harper AJA) (‘Hazeldene’).
Whether an offeree’s decision to reject a Calderbank offer was unreasonable in the circumstances depends on a number of relevant considerations. Whilst it is not possible to give an exhaustive list of all the potentially relevant considerations in any given case, the Court of Appeal noted in Hazeldene that a court should at least have regard to the following matters:
(a)the stage of the proceeding at which the offer was received;
(b)the time allowed to the offeree to consider the offer;
(c)the extent of the compromise offered;
(d)the offeree’s prospects of success, assessed as at the date of the offer;
(e)the clarity with which the terms of the offer were expressed; [and]
(f)whether the offer foreshadowed an application for indemnity costs in the event of the offeree’s rejecting it.[5]
[5]Ibid 442.
The 6 July offer was received by the plaintiffs at a relatively early stage in the proceeding. It was a clearly expressed and comprehensive offer and involved a genuine element of compromise in that the first defendant, whilst not agreeing to the erection of a fence or similar structure across the laneway, was willing to provide better surveillance of the laneway, report the results of that surveillance to the plaintiffs on a periodic basis, liaise with the police if necessary and assist the plaintiffs to remove graffiti on their property.
The 6 July offer was open to be accepted for 15 days, ample time for the plaintiffs to give it proper consideration. It was accompanied by a clearly articulated and well-reasoned position on the plaintiffs’ prospects of success at trial, which were remote. If the offer had been accepted, both parties would have been saved the costs of the trial held in March this year, including the bulk of the preparatory work, notwithstanding that the plaintiffs may still have proceeded against the second defendant. To that end, the 6 July offer contained an unequivocal warning to the plaintiffs that, should they refuse the offer and ultimately receive a less favourable result following judgment, the first defendant would seek ‘costs in excess of the standard basis including, but not limited to, indemnity costs’.
Having considered the relevant matters set down by the Court of Appeal in Hazeldene, in my view it was unreasonable for the plaintiffs to refuse the first defendant’s compromise encapsulated in the 6 July offer. As noted by counsel for the first defendant, the plaintiffs’ claims against the first defendant at the time of the 6 July offer were vague and ill-defined. By the time of the trial, those claims had been thinned out so that only the declaratory relief was being pursued. That relief was ultimately refused. The plaintiffs’ case against the first defendant has capitulated. This answers the point made by senior counsel for the plaintiffs as to the breadth of the release sought by the first defendant in paragraph 1.1.3 of the 6 July offer. The uncertainty of the plaintiffs’ claims at that time informed the extent of what the first defendant sought by way of compromise. Far from overreaching, the first defendant was simply protecting its position.
Whereas the 6 July offer included some concession on the part of the first defendant as to the surveillance and general state of the laneway, the plaintiffs walk away with nothing. They have received a less favourable result after judgment than the 6 July offer and did not act reasonably in refusing that offer.
The plaintiffs should pay the first defendant’s costs of the proceeding on the standard basis up to and including 21 July 2015 and on an indemnity basis thereafter.
Orders in respect of the preliminary matters
Accordingly, I will order that:
(a) the plaintiffs’ claim for damages and interest against the first defendant be struck out and the further amended statement of claim filed 11 December 2015 be amended accordingly;
(b) the proceeding be dismissed as against the first defendant;
(c) the costs of the first defendant be paid by the plaintiffs on the standard basis up to and including 21 July 2015 and on an indemnity basis thereafter, to be taxed in default of agreement; and
(d) the costs of the plaintiffs and the second defendant be reserved.
The fence erected by the plaintiffs across the laneway
I turn now to consider the orders sought by the first defendant in its summons filed 26 July 2016; namely, the removal of the fence erected by the plaintiffs across the western end of the laneway.
Background
On 21 March 2016, Ms Christina Foscolos attended the laneway with Mr George Triantis. Both are employees of the first defendant. Ms Foscolos is the first defendant’s environmental health coordinator.
Upon attending the laneway, Ms Foscolos noticed what she described as a ‘wooden fence’ across the western end of the laneway impeding access to the laneway from Lovers’ Walk. Ms Foscolos took a number of photographs at that time which appear to show the wooden fence barring entrance to the laneway from Lovers’ Walk.
On 8 June 2016, another employee of the first defendant, Mr Michael Cimjack, attended the laneway. Mr Cimjack works as a building compliance officer for the first defendant. He too noticed a ‘wooden fence’ erected across the western end of the laneway barring entrance to the laneway from Lovers’ Walk. Like Ms Foscolos, Mr Cimjack took a number of photographs of the laneway and the wooden fence. The wooden fence depicted in Mr Cimjack’s photographs is essentially identical to the one depicted in Ms Foscolos’ photographs, apart from graffiti on the side of the fence facing Lovers’ Walk that was not present in March but was present in June.
Mr Cimjack returned to the laneway on 25 July 2016 whereupon he observed that the wooden fence remained in place. He again took photographs of the fence, which appeared largely unchanged from the photographs he took in June.
By affidavit sworn 25 August 2016, the second plaintiff (‘Mrs Anderson’) describes the circumstances that led to the erection of the fence. On the morning of 18 March this year, the first plaintiff (‘Mr Anderson’) was repeatedly stabbed by a male intruder at the rear of the plaintiffs’ property at 21 William Street, South Yarra. Mr Anderson received life-threatening injuries as a result of the stabbing. He underwent emergency surgery later that morning and was ultimately discharged from hospital on 1 April 2016. He was lucky to survive the attack.
Mrs Anderson deposes that, as a result of the attack on her husband, she felt ‘extremely vulnerable and afraid’. She instructed the plaintiffs’ builder, who was working on an extension to the rear of the plaintiffs’ property at the time, to erect a fence across the western end of the laneway, effectively barring access to the laneway from Lovers’ Walk. The fence was erected on 21 March 2016. It is accepted that this is the ‘wooden fence’ observed by both Ms Foscolos and Mr Cimjack.
Mr and Mrs Anderson are currently seeing a psychologist, Mr Tim Watson-Munro, to help them deal with the psychological impact of the stabbing. Mr Watson-Munro produced a report dated 23 August 2016 in which he concludes that both Mr Anderson and Mrs Anderson are suffering from various psychological symptoms related to the stabbing, and that ‘there will be a significant escalation in the intensity of [those] symptoms should the fence/wall, which has been constructed whilst these proceedings are in play is [sic] removed’.
Mrs Anderson also deposes to the fact that there is substantial support for the closure of the laneway amongst the local community. To that end, she cites a petition signed by 159 local residents supporting the closure of the laneway and a report dated 3 June 2013 prepared by the first defendant recommending the erection of a barrier at the western end of the laneway to prohibit pedestrian access to the laneway from Lovers’ Walk for a ‘trial period of 12 months’. She also refers to the views expressed by the plaintiffs’ neighbours at 19 William Street, South Yarra, whose property also adjoins the laneway and who also support the maintenance of the plaintiffs’ fence.
Upon learning of the plaintiffs’ fence, the first defendant immediately sought its removal. By letter dated 24 March 2016, the solicitors for the first defendant wrote to the plaintiffs’ solicitors seeking confirmation that the fence would be removed and ‘the proposed timeframe for that to occur’. In the circumstances of the recent attack on Mr Anderson, the plaintiffs’ solicitors were, understandably, having difficulties in obtaining instructions. Subsequent correspondence between the solicitors did not progress the matter any further and by the time the Court delivered its decision in respect of the legal status of the laneway on 1 July, no action had been taken to remove the plaintiffs’ fence.
In the course of that correspondence, the solicitors for the first defendant noted on several occasions that the parties were in the midst of a part-heard trial before this Court in which the legal status of the laneway, and the plaintiffs’ right to restrict access to it, was in issue. The first defendant was clearly concerned about the plaintiffs’ unilateral decision to erect the fence at the western end of the laneway whilst the Court’s judgment on the first part of the trial was pending. So much can be seen in the letter from the first defendant’s solicitors to the plaintiffs’ solicitors dated 22 April 2016:
In circumstances where a decision on the status of the laneway is expected shortly, [the first defendant] is concerned that your clients took it upon themselves … to erect the fence across the laneway without any discussion or notification to [the first defendant] at all. Pending the Court’s decision, our client considers it only reasonable that the public access which has existed for decades be reinstated.
Similar concerns were expressed in letters dated 24 March 2016 and 10 May 2016 respectively.
The Court refused the plaintiffs’ declaratory relief on 1 July this year and the first defendant, through its solicitors, again sought the removal of the plaintiffs’ fence. By letter dated 18 July 2016, the first defendant required the plaintiffs ‘to remove the fence and make good the area at their own cost’ by 4pm on 25 July 2016. That letter referred to the 1 July judgment, as well as certain provisions of the Local Government Act 1989 (‘the LG Act’) which were also relied upon during the hearing.
The plaintiffs, in a letter from their solicitors to the first defendant’s solicitors dated 25 July 2016, again refused to remove the fence, citing the stabbing attack on Mr Anderson as the primary reason for leaving the fence in place. The next day, the first defendant informed the plaintiffs that it would seek orders from the Court requiring them to remove the fence at their own cost and make good the land. Thus, the first defendant’s summons seeking those orders was filed with the Court on 26 July 2016.
First defendant’s submissions
In seeking the removal of the plaintiffs’ fence from the laneway, the first defendant relies on the findings made in the reasons for judgment published on 1 July 2016; in particular, the finding that the laneway is a road for the purposes of the LG Act.[6] The first defendant submits that certain provisions of the LG Act give it the power to remove the fence, either on its own accord or by requiring the plaintiffs to remove it.
[6]Anderson & Anor v City of Stonnington & Anor [2016] VSC 374 (1 July 2016), [90]–[91].
Section 207 of the LG Act is titled ‘Powers of Councils over traffic’ and is in the following terms:
Subject to the Road Safety Act 1986 and any regulations made under that Act, but without limiting any other powers of a Council as a road authority, the powers include the specific traffic management powers set out in Schedule 11.[7]
[7]It is common ground that the first defendant is a council within the meaning of s 3 of the LG Act and that neither the provisions of the Road Safety Act 1986 nor the regulations made under that Act play any relevant part in this proceeding.
After setting out that provision, counsel for the first defendant took the Court to cl 5 of schedule 11 to the LG Act, which relevantly states:
A Council may—
(a)move any thing that encroaches on or obstructs the free use of a road or that reduces the breadth, or confines the limits, of a road …
(b)require any person responsible for, or in control of, the thing to move it.
The first defendant submits that cl 5 of schedule 11 gives it the power to remove the fence erected across the western end of the laneway, either by removing the fence itself or by requiring the plaintiffs to remove the fence as the persons responsible for it. It was on the basis of this power that the first defendant repeatedly wrote to the plaintiffs seeking the removal of the fence. Whilst the provision empowers the first defendant to remove the fence from the laneway itself, it seeks to compel the plaintiffs to remove the fence at their own expense. This is because the first defendant is concerned that any attempt by it to remove the fence would be met with an injunctive application from the plaintiffs. That concern is borne out in the history of this proceeding, which was comprehensively summarised by John Dixon J in an earlier judgment in September 2014,[8] where his Honour refused to grant the plaintiffs an injunction to stop the first defendant from removing a fence they had erected across the laneway.
[8]Anderson & Anor v City of Stonnington [2014] VSC 519 (29 September 2014).
In the event that the Court refuses to order the plaintiffs to remove the fence themselves, the first defendant submits that an alternative course is available under s 225 of the LG Act. That section allows a council, or a person acting with the approval of a council, to carry out work which the council required another person to do but which that other person has not done. The council or the approved person may recover the cost of carrying out the work from the person who was required, but failed, to do it.[9]
[9]Local Government Act 1989, s 225(2)–(3).
Finally, in response to the plaintiffs’ submission that the relief sought by the first defendant pursuant to the LG Act is contradictory to an order dismissing the proceeding against it, counsel for the first defendant submitted that an order for removal of the plaintiffs’ fence was a natural consequence of the positive findings made in the 1 July reasons for judgment. To the extent that it is necessary, the first defendant relies on r 59.01 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) in seeking that relief. That rule states as follows:
The Court may, at any stage of a proceeding, on the application of any party, give such judgment or make such order as the case requires notwithstanding that the judgment or order had not been sought in the originating process or other document of the party in the proceeding.
The first defendant submits that the orders sought in its summons filed 26 July fall squarely within the terms of r 59.01. It was a party to the proceeding when it filed the summons and when the summons was heard by the Court. There is no reason why it should be barred from seeking specific relief in the proceeding whilst also seeking the dismissal of the proceeding against it, both of which it is entitled to as a consequence of the 1 July judgment. This is supported by ss 7 and 47 of the Civil Procedure Act 2010 which, when read together, give the Court a broad power to ‘give any direction or make any order it considers appropriate’ in a civil proceeding to ‘facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’.
Plaintiffs’ submissions
The plaintiffs readily concede that the first defendant had the power to remove the fence they have erected across the laneway. However, they object to an order that they remove the fence themselves and make two submissions in support of that objection.
In the first place, they say that the relief sought by the first defendant in the summons filed 26 July 2016 is in the nature of an interlocutory injunction and cannot be sought by a party that is also seeking final relief in the form of an order dismissing the proceeding against it. Furthermore, it must be accompanied by an undertaking as to damages, an ordinary requirement for an interlocutory injunction designed to protect the interests of the enjoined party in case the injunction is granted and later shown to be unjustified.[10] The first defendant has not proffered that undertaking and the Court, therefore, cannot make the order sought without risking a serious injustice to the plaintiffs should their appeal against the 1 July judgment be successful.
[10]National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 386.
The plaintiffs also submit that the first defendant’s reliance on r 59.01 of the Rules is misconceived. They contend that that rule is subject to r 13.02, which relevantly states ‘every pleading shall … state specifically any relief or remedy claimed’.[11] The plaintiffs say the broad power in r 59.01 can only be called on by a party that has some claim for relief in the proceeding. It follows that, short of making a counterclaim against the plaintiffs, the first defendant cannot now rely on r 59.01 to seek relief it never claimed in its pleadings.
[11]Supreme Court (General Civil Procedure) Rules 2015, r 13.02(1)(c).
Finally, senior counsel for the plaintiffs submitted that ordering the plaintiffs to remove the fence themselves would involve a significant aggravation of the trauma they suffered as a result of the stabbing of Mr Anderson on 18 March this year. Furthermore, based on the psychological report of Mr Watson-Munro, such an order would be deleterious to both plaintiffs’ health and ‘their already parlous and fragile emotional states’. The first defendant is very capable of removing the fence itself and should not be permitted to cause the plaintiffs unnecessary angst.
Consideration
The plaintiffs rightly accept that the first defendant is entitled to remove the fence they have erected across the laneway. That conclusion is readily drawn from the 1 July reasons for judgment, which the plaintiffs have now appealed. However, they resist an order that they remove the fence themselves, as sought by the first defendant in its summons filed 26 July 2016, on two broad grounds.
The first ground for the plaintiffs’ resistance is procedural. They say that the first defendant has not demonstrated a proper basis on which it can seek relief from the Court, particularly as the relief it seeks would take the form of an interlocutory injunction.
I do not accept the plaintiffs’ submissions on this ground. Section 207 of the LG Act, when read together with cl 5 of schedule 11 to that Act, empowers the first defendant, as a result of the findings made in the reasons for judgment delivered on 1 July this year, to require the plaintiffs to remove the fence erected across the laneway as the persons responsible for it. In this way, the order sought by the first defendant is, as counsel for the first defendant submitted, just a natural consequence of the 1 July judgment.
The order sought by the first defendant is not in the nature of an interlocutory injunction. An interlocutory injunction is generally sought to alter, or prevent another party from altering, the status quo that exists at the time of the trial. It is designed to protect the interests of a party before the court can make a final determination as to its legal rights and obligations. That is not what is sought by the first defendant.
In this case, the first defendant seeks to restore the status quo as at the time of the trial, which has been impermissibly altered by the erection of the plaintiffs’ fence. The reasons why the laneway must remain unfenced and the status quo maintained were carefully explained by John Dixon J shortly after this proceeding was commenced.[12] It is unnecessary to repeat what his Honour said on that occasion. Suffice to say that the plaintiffs were well aware that erecting the fence was illegal.
[12]Anderson & Anor v City of Stonnington [2014] VSC 519 (29 September 2014).
The plaintiffs’ challenge to the first defendant’s invocation of r 59.01 of the Rules must also fail. In my view, that rule is capable of supporting the order sought in the first defendant’s summons. The plaintiffs asserted that the rule is subject to r 13.02 and therefore could not be relied on by a party that did not claim any relief in its pleadings, such as the first defendant in this proceeding. However, the plaintiffs did not point to any authority or principles of interpretation that support their assertion. The authorities they did refer to are, at best for the plaintiffs, ambivalent on the point,[13] noting, for example, the judgment of Hansen J (as his Honour then was) in Farrow where his Honour held that ‘the absence of a specific claim for relief does not mean that the court should not grant that relief’.[14] Regardless of the authorities, the point is unduly technical and fails to take account of the circumstances of this case; namely, that the plaintiffs took it upon themselves to fence the laneway at a time when this Court had reserved its decision on the legality of that conduct.
[13]Rawson v Hobbs (1961) 107 CLR 466, 485 (Dixon CJ); Farrow Finance Company Ltd (in liq) v Farrow Properties Pty Ltd (in liq) [1999] 1 VR 584, 633–6 (Hansen J) (‘Farrow’).
[14]Farrow [1999] 1 VR 584, 635 [178].
In any case, the plaintiffs cannot say that they did not have notice of the first defendant’s intention to keep the laneway unobstructed and open to the public. Such a claim would fly in the face of the lengthy correspondence between the parties over several years, as well as John Dixon J’s decision allowing the first defendant to remove an earlier fence erected by the plaintiffs. The first defendant has always contended that the laneway is a road and that the plaintiffs have no right to fence it off. That was its case at trial and the 26 July summons is merely an extension of that case.
I consider the relief now sought by the first defendant to be a natural consequence of the 1 July reasons for judgment. In those reasons, I found that the laneway is a road for the purposes of the LG Act, thereby giving the first defendant certain powers with respect to it. Some of those powers are contained in the provisions of the LG Act referred to above. It would be incongruous to prevent the first defendant from exercising those powers now.
The second ground on which the plaintiffs seek to resist the order sought by the first defendant is circumstantial. They say that, as a result of the attack on Mr Anderson on 18 March this year, they have suffered significant psychological and physical trauma. This is supported by the expert report of Mr Watson-Munro, their treating psychologist. In those circumstances, the plaintiffs submit that it would cause them undue hardship to remove the fence themselves, as opposed to the first defendant removing it.
I accept, on the basis of Mr Watson-Munro’s report, that the plaintiffs may be psychologically affected by the removal of the fence from the laneway, which was erected immediately after the stabbing of Mr Anderson. Indeed, I accept that they may suffer some hardship if the fence is removed. However, Mr Watson-Munro does not consider whether that hardship would be exacerbated if they were required to remove the fence themselves, as opposed to simply allowing the first defendant to remove it. He does not conclude that the effect of the removal of the fence on the plaintiffs would be significantly worse if they removed it themselves.
Given that the plaintiffs are prepared to concede that the first defendant is entitled to remove the fence from the laneway, I consider their hardship will not be made that much worse by an order that they remove the fence themselves. They are responsible for its erection and the first defendant is entitled to require them to remove it, given that the laneway is a road for the purposes of the LG Act. Furthermore, they erected the fence knowing that it was illegal to do so.
The circumstances of Mr Anderson’s stabbing were brutal and tragic. I accept that both Mr and Mrs Anderson have suffered greatly as a result. However, those circumstances do not justify the plaintiffs’ actions in law. The fact remains that the plaintiffs sought declarations at trial to allow them to fence the laneway and those declarations were refused. Despite this, the plaintiffs took it upon themselves to erect the fence across the laneway before the Court had ruled on the declarations sought. Their conduct, albeit under duress, showed no regard for the proper procedure of the Court and was completely dismissive of the defendants’ rights as parties to this proceeding. I see no reason why the first defendant cannot require the plaintiffs to remove their fence pursuant to the LG Act.
Orders with respect to the first defendant’s summons filed 26 July 2016
In respect of the first defendant’s summons filed 26 July 2016, I will order that:
(a) On or before 14 October 2016, the plaintiffs must, at their own expense:
(i) remove the fence erected on or around 21 March 2016 at the western end of the laneway (as defined in Anderson & Anor v City of Stonnington & Anor [2016] VSC 374 (1 July 2016)); and
(ii) make good any damage to the laneway caused by the erection or removal of the fence.
In the event that the plaintiffs do not comply with that order, I will declare that:
(a) Pursuant to s 225 of the Local Government Act 1989, the first defendant, or any person approved by the first defendant, is entitled to:
(iii) remove the fence erected by the plaintiffs on or around 21 March 2016 at the western end of the laneway (as defined in Anderson & Anor v City of Stonnington & Anor [2016] VSC 374 (1 July 2016)) and make good any damage to the laneway caused by the erection or removal of the fence; and
(iv)recover from the plaintiffs the cost of carrying out those works.
The costs of the first defendant’s summons filed 26 July 2016 are costs in the proceeding and should be dealt with in accordance with the orders set out at [19] above.
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