Coleman v Bicknell

[2021] QDC 302

DISTRICT COURT OF QUEENSLAND

CITATION:

Coleman v Bicknell & Ors [2021] QDC 302

PARTIES:

RUSSELL GRAHAM COLEMAN

(plaintiff)

v

NATALIE EILEEN BICKNELL

(first defendant)

and
DAVID JOHN BICKNELL
(second defendant)
and
ADAM JOHN COLEMAN

(second defendant by counterclaim)

FILE NO:

1311/2016

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

DELIVERED ON:

3 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

1, 2, 3 and 17 September 2021

JUDGE:

Jarro DCJ

ORDER:

The claim is dismissed.  The counterclaim is dismissed.    

CATCHWORDS:

TORTS – NUISANCE – PRIVATE NUISANCE – PARTICULAR CASES – NOISE – where the plaintiff and the defendant were neighbours – where the defendants installed wind chimes – whether the noise generated by the wind chimes constituted a nuisance.

TORTS – ABUSE OF LEGAL PROCESS – MALICIOUS PROSECUTION – GENERALLY – where the defendants instituted proceedings under s 5 of the Peace of Good Behaviour Act 1982 – where the proceedings were dismissed – whether in instituting and maintaining the prosecution of the complaint, the defendants acted maliciously instead of for a proper purpose.

TORTS – NUISANACE – PRIVATE NUISANCE – PARTICULAR CASES – NOISE – where the plaintiff and the defendant were neighbours – whether various particularised acts made, and were caused to be made, loud and unreasonable noise for the plaintiff by counterclaim.

TORTS – INTERFERENCE WITH THE PROPERTY - where the plaintiff and the defendant were neighbours – whether various particularised acts constituted trespass to the plaintiff by counterclaim’s real and personal property.

TORTS – INTERFERENCE WITH THE PERSON – TRESPASS TO THE PERSON – GENERALLY – where the plaintiff and the defendant were neighbours – whether various particularised acts constituted trespass to the plaintiff by counterclaim’s person.

LEGISLATION:

Peace and Good Behaviour Act 1982

CASES:

A v NSW (2007) 230 CLR 500

Briginshaw v Briginshaw (1938) 60 CLR 336

Butler v Simmonds Crowley & Galvin [1999] QCA 475

Everett v Ribbands & Another (1952) 2 QB 198

Gooley v Curtain [1876] VLR 103

Leigh v Bruder Expedition Pty Ltd [2020] QCA 246

COUNSEL:

P Hackett for the plaintiff

R M De Luci for the defendants

SOLICITORS:

Colwell Wright Solicitors for the plaintiff

Robinson Locke Litigation Lawyers for the defendants

1. Neighbourly relations can be fraught and fragile and it is a pity when people cannot just be adults and get on with it.  This a case where credit looms large and there are concerns about the credibility and reliability of the evidence of all witnesses as each of them has engaged in conduct which reflects poorly upon them.  Suitably submitted by Mr Hackett of Counsel who appeared for the plaintiff (and defendants by counterclaim), all of them have ‘skin in the game’.

Background Facts

1. The parties were once neighbours in a residential canal estate at Dorsal Drive, Birkdale for about five years between 2011 and 2016 until the defendants (Mr and Mrs Bicknell) sold and moved away with their two young sons.  

2. The plaintiff, Mr Coleman Snr, originally sought essentially injunctive relief to prevent continuance of a nuisance which he…