Commonwealth of Australia (As Represented BY the Department of Infrastructure and REGIONAL DEVELOPMENT) v Jelfs

[2015] FCCA 2738

FEDERAL CIRCUIT COURT OF AUSTRALIA

COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE & REGIONAL DEVELOPMENT) v JELFS & ANOR [2015] FCCA 2738

Catchwords:
ADMINISTRATIVE LAW – Application for an interlocutory injunction – restraint of demolition works involving asbestos – nuisance – right to quiet enjoyment of property – premises fit for habitation – interlocutory application dismissed.

Legislation:

Residential Tenancies Act 2010 (NSW), ss.50, 52

Cases cited:
Andreae v Selfridge & Co Ltd [1938] Ch 1
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
Elston v Dore (1982) 149 CLR 480
Overseas Tankship (U.K.) Ltd v Miller Steamship Co Pty ("The Wagon Mound" (No. 2)) [1967] 1 AC 617
Sedleigh-Denfield v O’Callaghan [1940] AC 880
Worrall v Commissioner for Housing for the Australian Capital Territory [2002] FCAFC 127

Articles and other material cited:
Rosalie P. Balkin and Jim L.R. Davis, Law of Torts (LexisNexis Butterworths, 5^th ed, 2013)

Applicant: COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE & REGIONAL DEVELOPMENT)

First Respondent: KIM JELFS

Second Respondent: CASEY-DEAN JELFS

File Number: SYG 1052 of 2015

Judgment of: Judge Smith

Hearing date: 20 August 2015 & 14 September 2015

Date of Last Submission: 18 September 2015

Delivered at: Sydney

Delivered on: 9 October 2015

REPRESENTATION

Counsel for the Applicant: Mr J. Doyle & Mr D.W. Rayment

Solicitors for the Applicant: Australian Government Solicitor

Counsel for the First Respondent: Mr P. King

ORDERS

1. The application in a case filed by the first respondent on 13 August 2015 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1052 of 2015

COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE & REGIONAL DEVELOPMENT)

Applicant

And

KIM JELFS

First Respondent

CASEY-DEAN JELFS

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Kim Jelfs lives at 677 Badgerys Creek Road, Badgerys Creek NSW 2555  pursuant to a residential tenancy agreement between her and her son, Casey-Dean Jelfs, as tenants and the Commonwealth as landlord. The property is part of a site which the Commonwealth now wishes to develop as an airport. In order to do so, the Commonwealth has brought proceedings in this Court seeking orders terminating the tenancy agreement and for vacant possession of the property.

2. Ms Jelfs resists the orders sought by the Commonwealth on the basis that this Court has no power to make them and, in the alternative, that in circumstances of the case, no such orders ought to be made. Somewhat ironically, Ms Jelfs now seeks the exercise of this Court’s jurisdiction to grant interlocutory injunctive relief restraining the Commonwealth from demolishing the house on the property adjacent to the property on which she lives.

3. The basis for her application is that the house on the adjacent property contains asbestos and she claims that there is a risk that, when the house is demolished, airborne particles of asbestos will travel onto her property and give rise to the risk of her contracting diseases such as cancer or mesothelioma.

4. There is no issue between the parties that the house next door to Ms Jelfs contains asbestos. However, the Commonwealth opposes the grant of an injunction on the basis that Ms Jelfs has not established that any demolition will not proceed according to law and that, in any event, the application is misconceived because it is not in aid of maintaining the status quo until any final relief sought by Ms Jelfs is obtained.

Principles to be applied

1. The basic proposition where interlocutory injunctive relief is sought, is that it is necessary to identify the legal or equitable rights which are to be determined at trial in respect of which final relief is sought which may or may not be injunctive in nature: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 241 [91] per Gummow and Hayne JJ. Ms Jelfs has not sought any final relief in these proceedings. Mr King, who appeared for Ms Jelfs, relied on two types of legal rights of Ms Jelfs: first, those under the Residential Tenancies Act2010 (NSW) and in particular the right to quiet enjoyment of the land under s.50 and to premises that are fit for habitation under s.52; and secondly, on the right not to be subject to a nuisance. He argued that this issue was part of the “Commonwealth tenancy dispute” which was the matter currently before the Court. I doubt that. However, this application may be resolved without determining that issue.

2. The principles governing the grant of an interlocutory injunction were set out by Gummow and Hayne JJ at [65] to [72] of Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, Gleeson CJ and Crennan J agreeing (at [19]). Their Honours said:

   [65]The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued:

   “The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.”

   By using the phrase “prima facie case”, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal:

   “How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks”

   …

   [67]Various views have been expressed and assumptions made respecting the relationship between the judgment of this Court in Beecham and the speech of Lord Diplock in the subsequent decision, American Cyanamid Co v Ethicon Ltd. It should be noted that both were cases of patent infringement and the outcome on each appeal was the grant of an interlocutory injunction to restrain infringement. Each of the judgments appealed from had placed too high the bar for the obtaining of interlocutory injunctive relief.

   [68]Lord Diplock was at pains to dispel the notion, which apparently had persuaded the Court of Appeal to refuse interlocutory relief, that to establish a prima face case of infringement it was necessary for the plaintiff to demonstrate more than a 50 per cent chance of ultimate success. Thus Lord Diplock remarked:

   “The purpose sought to be achieved by giving to the court discretion to grant such injunctions would be stultified if the discretion were clogged by a technical rule forbidding its exercise if upon that incomplete untested evidence the court evaluated the chances of the plaintiff’s ultimate success in the action at 50 per cent or less, but permitting its exercise if the court evaluated his chances at more than 50 per cent.”

   …

   [70] When Beecham and American Cyanamid are read with an understanding of the issues for determination and an appreciation of the similarity in outcome, much of the assumed disparity in principle between them loses its force. There is then no objection to the use of the phrase “serious question” if it is understood as conveying the notion that the seriousness of the question, like the strength of the probability referred to in Beecham, depends upon the considerations emphasised in Beecham.

   …

   (Citations omitted)

3. The question then is whether Ms Jelfs has shown sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.

Grounds of application

1. Ms Jelfs’ evidence is that her house is 3.5 metres from the neighbouring property and that not all of the windows on the side of her house adjacent to that property are able to be closed. In early August 2015, she received a letter on the letterhead of AMJ Demolition Excavation in the following terms:

   …

   I am writing to you to give you notice that AMJ Demolition & Excavation will be commencing demolition and asbestos works on the following properties, 675 & 679 Badgerys Creek Rd, Badgerys Creek NSW 2555, Commencing on or after 10.08.2015

   Works will be carried out between 7.00 am to 5.00 pm.

   …

   Work-Cover has issued a permit for the commencement of works.

   …

2. She also says that on 12 August 2015 there was a man on the property next door whom she spoke to who had a mask hanging down around his jowl. She says that he told her that it would have been in her interests not to have a demolition take place in such close proximity while she was living in the dwelling in-between both the demolitions to be carried out and that this was said out of concern in discussing with the man about airborne particles. Ms Jelfs said that the man informed her that he was hired by the “demolition mob to undertake the testing of the properties”.

3. It may be noted that Ms Jelfs also gave some evidence about some people she thought were removing part of her fence. However, even if her evidence about that were accepted, there was no connection in the evidence between those people and the Commonwealth and I leave it to one side.

4. The man to whom Ms Jelfs spoke turned out to be Shevan Mahamad also known as Shevan Russel. Mr Russel is a project consultant for Clearsafe Environmental Solutions Pty Ltd and has a Masters Degree in Biotechnology and a Bachelor of Medical Science. He gave evidence that on 12 August 2015 he attended 675 and 679 Badgerys Creek Road, Badgerys Creek to carry out occupational hygiene assessment and monitoring in relation to propose demolition of the houses standing on those properties. As part of his role with Clearsafe, Mr Russel carries out thorough inspections and sampling of any possible asbestos containing materials, and takes samples to a laboratory which is accredited by the National Association of Testing Authorities for that purpose.

5. Mr Russel gave evidence in his affidavit sworn on 31 August 2015 that he had a conversation with Ms Jelfs in the following terms:

   She said:Hello. Who are you and what are you doing here?

   I said:My name is Shevan Russel. Here is my business card. I am here conducting an asbestos survey, inspecting the premises for asbestos, as part of the demolition process.

   She said:I have concerns about the demolition of these properties surrounding my house. I am mostly concerned about the effects of asbestos on my health, and the removal of the asbestos before the houses are demolished. Is it safe to demolish the houses?

   I said:I am not able to advise you on this. I am only assessing the premises for asbestos. However, asbestos removalists have to comply with relevant codes and standards, and there are procedures and protocols put in place for the safe removal of asbestos.

6. Mr Russel denied the conversation deposed to by Ms Jelfs.

Consideration

1. As far as one can tell from the demeanour of a witness, it appeared that Ms Jelfs was telling the truth when she gave evidence about her conversation with Mr Russel. By contrast, some of Mr Russel’s evidence was problematic. For example, under cross-examination he denied wearing protective clothing to the properties whereas, in his own affidavit, he said that he had taken a mask and protective clothing there with him on the day. Although he later explained that he was referring to different things, his explanation was not entirely satisfactory. If I had to resolve the factual dispute and could only do so by means of my impression of both witnesses, I would prefer the evidence of Ms Jelfs. However, it seems to me highly unlikely that someone in Mr Russel’s position would suggest, as Ms Jelfs inferred, that her health was at risk from the probability of airborne asbestos particles. On balance, I would conclude that either Ms Jelfs’ recollection or her understanding of the conversation was faulty. Nevertheless, I do not have to be satisfied on the balance of probabilities that Ms Jelfs’ case would succeed at a final hearing. I am satisfied that it is at least possible that Mr Russel had told her that there might be some concern in light of airborne particles.

2. However, even if that were the case, I do not accept that Ms Jelfs has established a sufficient likelihood of success to warrant the grant of an interlocutory injunction.

3. Insofar as Ms Jelf’s case relies on s.52 of the Act it has no prospects of success. That section requires the landlord to “provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant”. The obligation to “provide” arises at the beginning of the tenancy rather than throughout the period of the tenancy. The proposed demolition can have no impact on that obligation.

4. Alternatively, in order to succeed in an action for nuisance, Ms Jelfs would have to establish that the actions of the Commonwealth constituted a substantial interference with her enjoyment of her property. The same requirement applies in respect of the right to quiet enjoyment under the Act: Worrall v Commissioner for Housing for the Australian Capital Territory [2002] FCAFC 127; Southwark LBC v Tanner [2001] 1 AC 1, 9-11. Whether an interference is substantial is always a question of fact and degree.

5. Moreover, for there to be a nuisance, those actions would, in the circumstances, have to be an unreasonable use of the Commonwealth’s land. This is because there is a balance to be maintained between the right of an occupier to do what he or she likes with his or her own property and the right of a neighbour not to be interfered with: Sedleigh-Denfield v O’Callaghan [1940] AC 880 at 903 per Lord Wright. Another way of saying the same thing is that there must be proof of culpable conduct on the part of the defendant: Sedleigh-Denfield at 897 per Lord Atkin; see also Overseas Tankship (U.K.) Ltd v Miller Steamship Co Pty ("The Wagon Mound" (No. 2)) [1967] 1 AC 617, at 639; Elston v Dore (1982) 149 CLR 480.

6. When the interference alleged is to be temporary, such as that caused by a building operation, the exercise of proper care in the selection of the methods used to carry out such works will generally exonerate the defendant from liability: R.P. Balkin and J.L.R. Davis, Law of Torts, 5^th edition LexisNexis Butterworths 2013 at 14.28 referring to Andreae v Selfridge & Co Ltd [1938] Ch 1 at 5-6 per Greene MR.

7. On this understanding of the law, it is insufficient to warrant an injunction simply to say that an adjoining house containing asbestos is going to be demolished and to add that someone involved in the testing of that house for asbestos has said that it would not be in the applicant’s interests for that to occur. Further, in this case there is evidence that suggests that steps have, and will be taken, to minimise any risk of any spread of asbestos particles. The authority with responsibility for safe work environment, WorkCover, has authorised the company undertaking the demolition both to undertake asbestos removal in general and specifically in respect of these sites. The method approved was to spray glue and wet the asbestos and to dispose of it at the correct tip. This shows that the Commonwealth (or its agent) has to date taken and will in the future take reasonable care in the proposed removal of the asbestos.

8. In addition, the asbestos in question was found, after testing, to be non-friable which means that the asbestos fibres are such as to prevent their airborne disbursal. When samples taken by Mr Russel were tested, it was found that the exposure risk was low.

9. In the circumstances, I am not satisfied that Mrs Jelfs will be able to establish that any interference with her enjoyment of the property would be substantial. Consequently, there is little prospect that she will succeed in an action concerning the Commonwealth’s obligation under s.50 of the Act. For the same reason, I do not accept that she will be able to succeed in an action for nuisance.

Conclusion

1. For all of those reasons, I consider that there is insufficient likelihood that Ms Jelfs will establish any actionable nuisance, breach of the obligation of quiet enjoyment or any other interference with her legal or equitable rights to warrant an injunction.

2. The application in a case filed by Ms Jelfs on 13 August 2015 will therefore be dismissed with costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 9 October 2015