D'Aquino v Trovatello
[2015] VSCA 78
•1 May 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2014 0123
| FRANCESCO GIUSEPPE D’AQUINO (AS TRUSTEE OF THE D’AQUINO ENDOWMENT TRUST) | First Applicant |
| FELICE D’AQUINO (AS TRUSTEE OF THE D’AQUINO ENDOWMENT TRUST) | Second Applicant |
| ROCK POSTERS PTY LTD | Third Applicant |
| v | |
| FELICE TROVATELLO MARIA TROVATELLO ANDFANO NOMINEES PTY LTD RAYFANO NOMINEES PTY LTD LULINO NOMINEES PTY LTD | First Respondent Second Respondent Third Respondent Fourth Respondent Fifth Respondent |
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| JUDGES: | WARREN CJ, ASHLEY and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 23 April 2015 |
| DATE OF JUDGMENT: | 1 May 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 78 |
| JUDGMENT APPEALED FROM: | D’Aquino & Ors v Trovatello & Ors [2014] VCC 1460 |
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PRACTICE AND PROCEDURE — Summary judgment – Claim for damages for continuing nuisance — Defence based on Limitation of Actions Act 1958 — Whether claim had ‘no real prospect’ of overcoming limitations defence within meaning of s 63 of Civil Procedure Act 2010 — Inadequate evidence before trial judge to give summary judgment — Appeal allowed.
TORT — Nuisance — Damage alleged to be attributable to state of affairs commencing prior to limitation period and to subsequent conduct — Darley Main Colliery Co v Mitchell (1886) 11 App Cas 127; Sutherland Shire Council v Heyman (1985) 157 CLR 424, considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicants | Mr J A F Twigg QC with | Aitken Partners |
| Dr K Weston-Scheuber | ||
| For the First and Second Respondents | Mr A Klotz | Norris Coates |
| For the Third, Fourth and Fifth Respondents | Mr R Andrew | Rigby Cooke |
WARREN CJ:
I have had the considerable benefit of reading the judgment of McLeish JA in draft. I agree with his Honour’s reasons and the disposition he proposes.
ASHLEY JA:
I agree in the reasons of McLeish JA and with the orders which his Honour proposes.
McLEISH JA:
This appeal concerns a dispute which arose after a concrete slab was cast on land in Thornbury in about May 2002. The slab encroached over the boundary of the adjoining land. The following year, the owners of that land observed damage to a factory situated on it, close to the common boundary.
The adjoining owners commenced a proceeding in the County Court on 21 June 2013 claiming damages by reason of trespass, nuisance and negligence. A judge of the County Court ordered the summary dismissal of the proceeding on the ground that the plaintiffs would have no real prospect of succeeding with their claims by reason of the Limitation of Actions Act 1958. Judgment was entered for the defendants.
The applicants seek to have judgment against them set aside. For the reasons that follow, I would grant leave to appeal, if necessary, and allow the appeal.
Factual background
The first and second applicants have been the owners and occupants of the land at 226 Normanby Avenue Thornbury since about 20 February 2002. Since around that time, the third applicant has operated a printing business from a factory on that land which was built in about 1995.
The site, a former quarry, contains fill material to a depth of over 10 metres. The perimeter walls of the factory are made from concrete panels, supported on a strip footing on steel piles. A steel portal frame spans the factory, supporting a steel roof. The ground floor of the factory is supported on steel piles by an apron strip. The strip footing, which supports the western wall of the factory, has a concrete over-pour which creates a step, or lip. Both the factory and the step of the footing are wholly within the applicants’ land.
The first and second respondents own the land to the west of the applicants’ land, at 228 Normanby Avenue Thornbury. Since 1 June 2006, the third to fifth respondents have occupied that land, which has been used by the third to fifth respondents, and by other entities (since deregistered) before them, for the operation of a building and garden supplies business. It is convenient to refer to this land, albeit somewhat inaccurately, as the respondents’ land.
In about May 2002, a concrete pavement slab was cast on the eastern side of the respondents’ land. The slab extended approximately 130mm over the boundary of the applicants’ land so that it rested on top of the strip footing of the factory.
A number of large concrete block bunkers were constructed on the concrete slab, spanning the length of approximately six wall panels of the factory and located towards the rear of the respondents’ land. These bunkers were used continuously to store loose building and garden materials, sand, screening and other earth products.
In late 2003, the applicants noticed that the factory floor slab was showing signs of cracking. They engaged an engineer, Mr Robert Cilia, to investigate and advise them of the cause of the cracking. Mr Cilia prepared two reports, which are referred to in greater detail later in these reasons.
On 6 July 2006, the encroaching slab was cut along the common boundary of the land, except for part of the slab at the southern end of the properties fronting Normanby Avenue. The remainder of the slab was not cut until mid-2013.
The portion of the slab which was cut remained in position, sitting above the footings of the factory. The cut portion of the slab was not removed until the slab at the southern end of the property was also cut. It appears that the concrete bunkers were moved about one metre westward, away from the applicants’ land, in May 2006. After that time the third to fifth respondents commenced their occupation and business, and continued to use the bunkers.
In May 2013, rectification works commenced to repair the walls, slab, drains and offices of the factory, concluding in about October 2013.
The applicants engaged Dr Andrew Baigent, a structural engineer, to provide an expert report on the damage to the factory. Dr Baigent’s report, and subsequent correspondence, are discussed further below.
Reports of experts
In his first report, dated 30 June 2004, Mr Cilia recorded that the factory was showing significant structural distress. In particular, there was cracking to the concrete floor slab and panel walls adjacent to the western boundary. He stated that the concrete slab, concrete block retaining wall (i.e. the bunkers) and loose building material had applied an additional load on the pile which it was not able to support. This had resulted in the settlement of the pile and subsequent damage to the building.
Mr Cilia concluded that the additional loading from the adjoining property was the direct cause of the distress to the building and the failure of the piles supporting the main structure of that building. He recommended, among other things, that the loading on the adjoining property be removed immediately, that a geotechnical consultant be engaged to investigate the current condition of the piles, and that rectification should involve jacking the existing structure to its original position, followed by the removal of the conventional apron slab and its replacement with a new slab. He recommended that cracked walls and slabs be repaired using a flexible sealant material.
In his second report, dated 4 October 2005, Mr Cilia amended his description of the cause of the building’s distress, stating that it was a ‘bearing failure of the pile’ rather than ‘pile failure’. For present purposes, nothing appears to turn on this change. Mr Cilia confirmed that the cause remained the additional loading from the respondents’ land.
In this report, Mr Cilia recommended, among other things, the removal of all loads from the adjacent slab, the cutting of that slab at the boundary line and removal of that part of the slab which encroached the boundary line, propping of all panels in the affected area, removal of the entire roof structure in the affected area, removal of the concrete panels, and installation of screw jacks to underpin the existing footings, to be followed by reinstatement of the panels and roof structure. He also recommended removal of the suspended slab (to the first bay) and the casting of a replacement slab.
Early in 2005, a representative of the firm then occupying the respondents’ land and conducting the garden supplies business on that land wrote to Mr Cilia indicating that he was willing to cut the slab as set out in Mr Cilia’s second report. On about 6 December 2005, Mr Cilia sent a letter in response. In this letter, Mr Cilia stated that cutting the concrete slab would not solve the associated problems with the adjacent building. He said that this was because the problem was caused by the weight of the concrete blocks and the building materials which they held, which were applying additional loading to the foundations of the factory amounting to twice the design load of that building. Mr Cilia said further that cutting the concrete may exacerbate the problem by inducing lateral pressure on the footings which may cause further damage.
Mr Cilia stated in this letter that the only real solution was to remove and relocate all the concrete blocks which acted as retainer walls for the building and garden materials, remove and relocate all of those materials, cut the concrete pavement to allow the factory’s foundations to be freed of the concrete paving, and allow access to the applicants’ land to rectify the damage to the building.
In 2008 the applicants engaged Mr Stephen Darmawan, a geotechnical engineer, to monitor settlement and movement of the factory. In a report dated 28 July 2008, Mr Darmawan found that significant movement of the floor slab of the factory had occurred due to the settlement of the footings along the western boundary, and that this settlement was due to possible buckling of the steel piles from excessive load transferred to the strip footing from the stockpiles on the adjoining property, insufficient pile capacity to carry that transferred extra load, and ‘negative skin friction’ from the subsidence of the fill material. ‘Negative skin friction’ was caused by consolidation of fill material around the piles, which resulted in frictional forces between the settling fill material and the piles. This produced additional compression loading on the piles.
Mr Darmawan recommended, among other things, the removal of all stockpiles from the respondents’ property, the removal of the concrete slab to at least one metre away from the wall of the factory and the installation of underpinning to provide additional support to the strip footing along the western boundary of the building.
In his report of 30 September 2013, Dr Baigent found that the footing system of the factory had not been designed to support an additional load from a neighbouring property and that the loading of the slab on the respondents’ land had caused the fill material below the slab to compact and vastly to overload the piles of the factory. He identified damage to the western part of the factory consisting of subsidence and distortion of the wall panels, roof and concrete floor, and damage to internal structures. Dr Baigent stated that the piles became overloaded as soon as the concrete blocks and stockpiles were placed on the concrete slab. He said that the additional loading applied to the pile from the slab resulted in a slow but inevitable subsidence of the piles which would continue indefinitely.
Dr Baigent expressed the opinion that the cutting of the slab in July 2006 would have significantly reduced the loading on the piles. However, he said that even if the concrete slab had been fully cut, further subsidence ‘would have been inevitable because the concrete apron slab had resulted in the … failure of the piles and … this failure could not have been reversed by the removal of the additional loading’. In other words, subsidence ‘would have continued to occur and damage to the western wall of the building would have continued’, albeit at a slower rate, until rectification became necessary. Dr Baigent recommended the construction of new pile caps and piles to support the strip footing; cutting, removing and replacing the floor slab of the factory; jacking the roof; and installing new steel support columns.
County Court proceeding
As already noted, the applicants commenced a proceeding in the County Court on 21 June 2013. By a statement of claim filed and served on 13 November 2013, the applicants claimed damages against the respondents on the basis of trespass, nuisance and negligence. Liability was alleged to arise by reason of the additional loading on the footings and piles of the western wall of the factory resulting from the encroachment of the slab onto the applicants’ land. Each of the respondents filed defences pleading that the applicants’ causes of action were statute barred on the basis that they accrued no later than 2004.
The third to fifth respondents filed a summons seeking judgment pursuant to r 23.03, or alternatively summary judgment pursuant to s 63 of the Civil Procedure Act 2010. The first and second respondents gave notice of their intention to seek similar relief.
When the matter first came on for hearing, the judge in the County Court ordered the applicants to file a further proposed amended statement of claim and affidavit material in support. He directed that those documents address certain matters, including ‘the fact that no later than 31 May 2004, it became apparent to the [applicants] that damage had occurred to the western side of the factory on their property as a result of the foundations on the adjoining property’, and the fact that the slab on the adjoining property was partially cut at the boundary in July or September 2006. The primary judge also noted that the applicants had, in their pleading of damages, failed to properly differentiate between the damages arising before, and after, 21 June 2007. He directed that the ‘actual damage, the quantification of the damage and the causation of the damage prior to and after 21 June 2007 must be clearly articulated’.
The applicants duly filed a proposed further amended statement of claim and an affidavit exhibiting a further report of Dr Baigent, dated 1 August 2014. In that report, among other things, Dr Baigent opined that ‘approximately 75% of the subsidence and resulting building damage has occurred after 6 July 2006’. It will be recalled that this was the date when the slab was partially cut along the boundary. Dr Baigent based this conclusion on his review of level measurements carried out between 2008 and 2010, and his observations during an inspection of the building. He also expressed the view that the damage must not have been too significant when Mr Cilia inspected it because, as Dr Baigent understood it, there was no advice from Mr Cilia that the footing system under the western wall of the building needed to be underpinned. He said that if ‘the damage had been of concern at that point in time, it is my view that [Mr Cilia] would have recommended significant rectification works to the footing system’.
Dr Baigent referred to the partial cutting of the slab in July 2006, and expressed the view that the direct loading from the slab, concrete blocks and stored materials would have been reduced as a result of that cutting. He said that, had the slab been fully cut, ‘this load would have been eliminated’. However, he said that, in any event, the piles would have continued to be subjected to the loadings which were present prior to the construction of the slab, as well as the loadings resulting from the vertical stresses or consolidation of the fill material in the vicinity of the concrete slab. In other words, he said, the only loading which would have been reduced (or eliminated) was the direct loading from the concrete slab bearing onto the footing. As a result, in Dr Baigent’s view, even though the slab had been partially cut, there was still a significant negative skin friction loading being applied to the piles from the slab on the adjoining property.
Among other things, the proposed further amended statement of claim pleaded that, from about July 2006 after the partial saw cut of the concrete slab, the slab remained over the title boundary at the southern end of the western wall of the factory and continued to apply an additional load to the footing and piles at that part of the factory. Further, anything placed on the slab imposed a further additional load on the footing and piles of the whole of the western wall. It was pleaded that the additional load from the slab and the material placed on the slab (including the bunkers used in the garden supplies business) caused lateral stress on the fill material beneath the piles, which in turn caused that material to consolidate and subjected the piles to additional loading.
It was further pleaded that, after July 2006, damage to the piles and strip footing supporting the western wall of the factory continued, because the concrete slab was not supported other than on the soil beneath it, and the load from the slab and the additional load placed on it, including from the concrete bunkers containing garden supplies, compacted the soil beneath the slab causing a further or additional load to be placed on the footing and piles beneath the western wall of the factory along the wall where the concrete had been partially saw cut. Moreover, the concrete slab and the continued placement of the garden supplies on it along the front of the adjoining land where the slab was not saw cut caused damage to the footing and piles of the western wall of the factory and the concrete slab comprising the floor of the factory, because their weight caused vertical stress to the fill material below the slab so that it consolidated and subjected the piles to additional loading.
It was alleged that the applicants continued to suffer loss and damage after the partial saw cut by reason of these matters.
Primary judge’s reasons
The judge in the County Court correctly identified the issue for determination on the application before him as whether the applicants could plead and sustain a claim that has a ‘real prospect of success’ as that term is used in the Civil Procedure Act 2010.
The primary judge set out the issues in the case and summarised the various reports of the experts referred to earlier in these reasons. He emphasised Dr Baigent’s conclusion that approximately 75 per cent of the subsidence and resulting building damage had occurred after 6 July 2006. His Honour held that the statement involved a misreading of Mr Cilia’s reports, which the judge considered had listed works, including installation of screw jacks ‘to underpin the existing floorings [of the factory]’, which taken together essentially required the dismantling and rebuilding of the whole structure of the factory. His Honour said that, in these circumstances, there appeared to be little basis for Dr Baigent’s conclusion, ‘or any scope for further works other than those anticipated as necessary, or likely to be necessary after geotechnical evaluations, as at June 2004’.
His Honour considered that, in the circumstances, the applicants would have no real prospect of succeeding in their claims against the respondents. Accordingly, he ordered judgment for the respondents.
Submissions
In this Court, senior counsel for the applicants abandoned the claims in negligence and trespass. He indicated that the applicants wished, if successful, to seek leave to file and serve a pleading confined to a claim in nuisance for damage arising since 21 June 2007. As under the proposed further amended statement of claim that was before the primary judge, that damage would be alleged to be constituted by the application of additional loads to the piles of the factory, caused both directly where the slab had not been cut and indirectly through the ‘negative skin friction’ arising from the placing of the slab and other materials on the respondents’ land.
The applicants contended that the primary judge’s reasons disclosed a misunderstanding of the reports of Mr Cilia. It was submitted that, although Mr Cilia had, contrary to the statement made by Dr Baigent, recommended underpinning of the footings of the factory, the primary judge had misread this as a recommendation that the ‘floorings’ needed to be underpinned. It was submitted that the primary judge had misapprehended the limited scope of the works Mr Cilia had recommended in 2004 and that this undermined his Honour’s reasons for rejecting the evidence of Dr Baigent.
The applicants relied on Darley Main Colliery Co v Mitchell[1] for the proposition that, where conduct not actionable of itself causes separate damage on different occasions, a new cause of action arises when the subsequent damage occurs. It was submitted that the same principle applies where the damage is continuously occurring.[2] Reliance was also placed on Manson v President, Shire of Maffra,[3] where this Court applied this principle to a case of nuisance.
[1](1886) 11 App Cas 127.
[2]Crumbie v Wallsend Local Board [1891] 1 QB 503.
[3](1881) 7 VLR (L) 364, 375 (Stawell CJ), 378 (Higinbotham J) (applying Whitehouse v Fellowes (1861) 30 LJ (CP) 305). See also Maberley v Henry W Peabody & Co of London Ltd [1946] 2 All ER 192, 194 (Stable J) (‘Maberley v Peabody & Co’).
The respondents submitted that the evidence showed that the damage to the factory was inevitable as soon as the piles were damaged. From that point, it was submitted, the subsidence of the fill material was continuous and all ensuing damage was referrable to the cause of action which accrued when actual damage first occurred. Particular reliance was placed on the opinion of Dr Baigent to the effect that the overloading of the piles had occurred as soon as the concrete blocks and contents were placed on the concrete slab, and that this resulted in a slow but inevitable subsidence of the piles.
Counsel for the third to fifth respondents submitted that the authorities on which the applicants relied either involved causes of action for subsidence, rather than actions in nuisance, or were distinguishable on their facts. He contended that it was necessary for the applicants to identify and plead fresh damage over and above that caused by events occurring before 21 June 2007, and that the inevitability of the damage resulting from the original overloading of the piles meant that the damage relied on was not ‘fresh’.
Counsel observed that the applicants’ claims before the primary judge had concentrated on trespass and negligent failure to abate the damage caused by the concrete slab. He did not, however, press a submission that the claim in nuisance as outlined in this Court had not been advanced below.
Counsel for the first and second respondents substantially adopted the submissions of the third to fifth respondents, save that he accepted that cases dealing with subsidence, even if not brought as claims in nuisance, could still bear on the modern law of nuisance.
Summary dismissal under the Civil Procedure Act 2010
Section 63 of the Civil Procedure Act 2010 provides:
(1)Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
(2)A court may give summary judgment in any civil proceeding under subsection (1)—
(a) on the application of a plaintiff in a civil proceeding;
(b) on the application of a defendant in a civil proceeding;
(c)on the court’s own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.
The application of the test in s 63 was, as noted by the primary judge, elucidated in the decision of this Court in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd.[4] Warren CJ and Nettle JA there said, after reviewing relevant authorities:
It follows that, for present purposes, the test under s 63 of the Civil Procedure Act should be construed as one of whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success; that the ‘real chance of success’ test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test; and that, as the law is at present understood, the real chance of success test permits of the possibility that there may be cases, yet to be identified, in which it appears that, although the respondent’s case is not ‘hopeless’ or ‘bound to fail’, it does not have a real prospect of succeeding.[5]
[4][2013] VSCA 158 (‘Lysaght’).
[5]Lysaght [2013] VSCA 158, [29].
Their Honours concluded that, on the present state of authority, four principles could be stated:
a) the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success;
b) the test is to be applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel;
c) it should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
d) at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[6]
[6]Ibid [35].
Neave JA largely agreed with the judgment of Warren CJ and Nettle JA. However, her Honour was concerned that undue emphasis on the caution with which a court must exercise the power of summary dismissal ran the risk of departing from the intention of s 63. In her Honour’s opinion, the power of summary dismissal ‘should be exercised consistently with the over-arching purposes of the Civil Procedure Act 2010 and having regard to the fact that, if granted, it will deprive the relevant party of the opportunity to pursue their claim or defence’.[7]
[7]Ibid [42].
I draw attention to the observations of the court in Lysaght because, in the past at least, caution has particularly been encouraged in the determination of summary judgment applications in the context of limitation of actions questions. In Wardley Australia Ltd v Western Australia,[8] Mason CJ, Dawson, Gaudron and McHugh JJ said as follows:
We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question.[9]
[8](1992) 175 CLR 514 (‘Wardley’).
[9]Ibid 533.
As the judgments in Lysaght make clear, these observations were made in the context of a different and less liberal test than that for which s 63 provides. Moreover, the High Court has more recently deprecated the paraphrasing of statutory formulations defining powers of summary dismissal in an endeavour to provide an explanation of their operation or a definition of their content.[10] It may therefore be that the admonition of the Court in Wardley regarding the determination of limitation questions only ‘in the clearest of cases’ may not be applicable, in terms, to decisions under s 63. However, in my opinion it remains the case that, in interlocutory proceedings, insufficient is often known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify coming to the conclusion that the claims of the plaintiff have no real prospect of success by reason of limitation of actions defences.[11]
[10]Spencer v Commonwealth (2010) 241 CLR 118, 141 [58] (Hayne, Crennan, Kiefel and Bell JJ) (‘Spencer’).
[11]See also Total Gas Care Pty Ltd v Barry Bros Specialised Services Pty Ltd [2012] VSCA 303, [22] (Hargrave AJA, Whelan JA agreeing).
I am confirmed in that view by the more general observation of Hayne, Crennan, Kiefel and Bell JJ in Spencer to the effect that the power to dismiss an action summarily is not to be exercised lightly.[12]
[12](2010) 241 CLR 118, 141 [60].
Disposition
In order to determine whether or not claims in a civil proceeding have no real prospect of success, it is first necessary to identify those claims with precision. In the present case, as already noted, the applicants now claim only in nuisance. While the applicants rely in part on a state of affairs which began more than six years before the County Court proceeding was commenced, it can be seen that they allege both that damage continues to result from that state of affairs, and that additional damage has been caused as a result of events occurring after that date. In particular, they allege that the continued presence and use of the concrete bunkers after July 2006 has caused damage to the factory, both in the area where the concrete slab was cut in July 2006, and as a result of the ongoing use of the area in which the slab was not cut until 2013.
The respondents did not lead evidence before the primary judge for the purpose of establishing, as a matter of fact, that the applicants would be unable to sustain their claims. Instead, the respondents pointed to the limitation period and contended that, on the basis of the applicants’ own material, the case would be unable to succeed.
In taking this course, the respondents assumed a heavy burden. In order to show that the claim had no real prospect of success, it was necessary for the respondents to establish that the applicants had no real prospect of overcoming the limitations defence. That in turn meant, either that the pleaded claims fell wholly outside the limitation period, or that, although there were claims that arose within the limitation period, there was no real prospect of sustaining them at trial.
It is clear from the proposed further amended statement of claim that the applicants seek to rely on events occurring after July 2006 and 21 June 2007 to sustain their claim in nuisance. The applicants rely on the continued presence of the concrete slab on the respondents’ land and the presence and use of the bunkers on that slab, as acts causing damage to their factory.
As has been seen, the primary judge concentrated on the question whether damage could be shown to have been caused after July 2006. Strictly speaking, the question was not whether damage continued to be caused, so much as whether a fresh cause of action accrued after that time. In that regard, it is important to observe that, quite apart from the conduct pleaded to have been engaged in after July 2006, including after June 2007, it would be possible for a fresh cause of action in nuisance to accrue as a result of damage (or aggravation of damage), occurring after that time but attributable to a continuing state of affairs which commenced outside the limitation period.
In my opinion, Darley Main Colliery Co v Mitchell[13] stands for that proposition. That case involved damage to buildings on land as a result of two incidents of subsidence which were both attributable to the defendants’ mining operations which had occurred more than six years before the second incident. The House of Lords held that the second cause of action did not arise until the second subsidence occurred, even though this was more than six years since the last mining operations of the defendants. Lord Halsbury explained:
No one will think of disputing the proposition that for one cause of action you must recover all damages incident to it by law once and for ever. A house that has received a shock may not at once shew all the damage done to it, but it is damaged none the less then to the extent that it is damaged, and the fact that the damage only manifests itself later on by stages does not alter the fact that the damage is there; and so of the more complex mechanism of the human frame, the damage is done in a railway accident, the whole machinery is injured, though it may escape the eye or even the consciousness of the sufferer at the time; the later stages of suffering are but the manifestations of the original damage done, and consequent upon the injury originally sustained.
But the words ‘cause of action’ are somewhat ambiguously used in reasoning upon this subject; what the plaintiff has a right to complain of in a Court of Law in this case is the damage to his land, and by the damage I mean the damage which had in fact occurred, and if this is all that a plaintiff can complain of, I do not see why he may not recover toties quoties fresh damage is inflicted.[14]
[13](1886) 11 App Cas 127.
[14](1886) 11 App Cas 127, 132–133 (emphasis in original).
I am unable to accept that Lord Halsbury’s observations are to be confined to cases pleading a cause of action for subsidence, and do not apply to actions in nuisance. In the first place, as senior counsel for the applicants pointed out, counsel for the respondent (plaintiff) in the House of Lords framed his argument in terms of nuisance. Moreover, a leading Australian text treats the case as an authority governing the question of successive occurrence of damages in nuisance.[15] Finally, there is no reason in principle why claims for subsidence of land should be treated any differently from claims in nuisance in this respect.
[15]R P Balkin and J L R Davis, Law of Torts (5th ed, 2013), 807 [28.21].
The position was, with respect, correctly explained by Thomas J, with whom McPherson J and de Jersey J relevantly agreed, in the context of a claim for damages for the cost of preventing damage anticipated to arise from the excavation of neighbouring land, in Barbagallo v J & F Catelan Pty Ltd[16] as follows:
The difficulty arises from the fact that the plaintiffs’ cause of action is in nuisance, which in the present circumstances, is a continuing wrong. The making of the excavation was (subject to the production of some damage or sufficient inconvenience to the plaintiff) a wrong, and the continued existence of such excavation made it a continuing wrong. The fact that the defendants, by selling the land, may have put it out of their power to abate the wrong, did not make their tort any the less a continuing wrong.
It is well established that damages for prospective loss are not recoverable in the case of continuing wrongs. The basis of the piecemeal assessment of damages in such cases is the fact that a fresh cause of action arises every day. It was recognised as inconsistent and absurd that there should be any allowance for prospective loss while a plaintiff retained (as he undoubtedly did) the right to bring further actions if the nuisance continued … The theory of the common law was that successive awards would persuade the defendant to cause the nuisance to be abated and that in any event the plaintiff (or his successor) would be able to recover his actual damage up to any given time … It is obvious that such a system was (and still is) cumbersome and inconvenient, and that the remedies developed by equity in such situations were superior. In some cases an injunction could require the abatement of the nuisance, and in others where it was inappropriate to issue an injunction, the power to award damages under Lord Cairns’ Act was used. This enabled assessments of damages to be made which were, for practical purposes, once and for all assessments. …
So far as I am aware the distinction remains between the respective approaches of common law and the equity in this area. The common law rule is a well recognised exception to the general rule that ‘for one cause of action you must recover all damages incident to it by law once and forever’ (per Lord Halsbury in Darley Main Colliery Co v Mitchell (1886) 11 App Cas 127 at 132–3; Cf Sutherland Shire Council v Heyman (1985) 59 ALJR 564, 592). His Lordship then went on to hold that no cause of action based on loss of support would lie for an excavation until the plaintiff suffered damage, and that every new subsidence, although proceeding from the same original act of the defendant, would create a new cause of action for which damages might be recovered.[17]
[16][1986] 1 Qd R 245.
[17]Ibid 262–3 (citations omitted).
Contrary to the submissions of the respondents, I do not read Brennan J as having said anything to the contrary in Sutherland Shire Council v Heyman.[18] His Honour there set out the general principle articulated by Lord Halsbury, and after reference to Maberley v Peabody & Co stated that ‘in the field of damage to real property, the notion that some degrees of damage manifested at a later stage than the initial damage constitute fresh damage is at odds with principle’. However, Brennan J was expressly applying the ‘once and for all’ rule in relation to claims in negligence. Further, his Honour distinguished Maberley v Peabody & Co on the basis that Stable J was in that case referring to the possibility of a continuing cause of action in nuisance, as distinct from other causes of action where fresh damage is required to support successive actions.
[18](1985) 157 CLR 424, 490–491.
For these reasons, it was legally open to the present applicants to plead a claim in nuisance and to seek to recover damages in respect of such damage as occurred after 21 June 2007.
Once that is accepted, the respondents needed to persuade the primary judge, as they did, that there was no real prospect of the claim succeeding at trial by reference to factual rather than legal defects. As has been seen, they sought to do so by relying on the evidence put forward by the applicants, to show that no damage had in fact occurred after 21 June 2007 beyond that which had already been caused outside the limitation period.
It was no answer to the applicants’ claim to observe, as the primary judge did, that Dr Baigent’s conclusion regarding the appropriate damage figure had ‘little basis’. In the first place, even if the 75 per cent figure was not supportable, it did not at all follow that there was no real prospect of success. Any figure above zero for damage occurring after 21 June 2007 would be sufficient to establish damage for the purposes of the claims brought by the applicants.
Secondly, even if Dr Baigent’s opinion had no basis, this would not have been a ground for finding that the applicants had no real prospect of success of establishing the pleaded claims at trial. The applicants would not be confined at trial to the evidence of Dr Baigent. Moreover, even if they did base their case solely on his evidence, the identification of inconsistencies in that evidence falls short of establishing that there would be no real prospect of success. The opinion of Dr Baigent was not the subject of oral evidence or cross-examination before the primary judge. At trial, the inconsistency identified by the primary judge would be expected to be tested in cross-examination. It was not open to conclude that there was no real prospect of Dr Baigent giving an explanation of the inconsistency that would persuade the Court to accept his opinion.
Thirdly, as already mentioned, the question of damage alone could not be dispositive of the present case. The onus lay on the respondents to establish the lack of a real prospect of the applicants making out the cause of action in nuisance. As indicated, they did not seek to do this by leading their own evidence as to the hopelessness of the claims. The onus was not able to be discharged in the present case simply by identifying deficiencies in the expert evidence upon which the applicants relied in the interlocutory proceeding.
For these reasons, the appeal should be allowed.
Leave to appeal
The parties made written submissions in relation to the question whether or not leave is required to appeal from a summary dismissal judgment.[19] In view of the conclusion to which I have come as to the merits of the case, it is not necessary or desirable to enter into that question. It is not necessary because, if leave were required, it should be granted by reason of the merits of the application. It is not desirable because, since the commencement of the requirement for leave in all civil appeals[20] the question whether leave is required in cases of this kind is of diminishing and ultimately no practical significance in this State.
[19]Reference was made to Manderson M & F Consulting v Incitec Pivot Ltd [2011] VSCA 444, [11]; Shaw v Yarranova [2014] VSCA 48, [14]; Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401, [40]; Gheorghiu v Perpetual Trustees Victoria Ltd [2007] VSCA 83, [18]; Trade World Enterprise Pty Ltd v Deputy Commissioner of Taxation (Cth) [2006] VSCA 191, [8].
[20]Supreme Court Act 1986, s 14A.
Counsel for the respondents submitted that the manner in which the applicants had changed their case on appeal was relevant to the question of leave. I would not refuse leave on that ground. The change was one of emphasis. Further, even if the claim relied on in this Court were to be regarded as novel, the respondents did not suggest that they were prejudiced, or, in particular, that they would have sought to meet it at trial by adducing further evidence.
Fresh evidence
On the hearing of this appeal the applicants sought to rely on fresh evidence in the form of a further opinion of Dr Baigent. Again, in light of the conclusions I have reached, it is not necessary to determine that application. Had the matter arisen, it would have been necessary for the discretion to admit fresh evidence to be exercised sensitive to the fact that the applicants have not had the benefit of a trial and the opportunity thus afforded to investigate, and have a determination upon, the facts and the law.[21]
[21]Doherty v Murphy [1996] 2 VR 553, 555 (Nathan J), 563 (Hansen J) (Tadgell J not deciding); Total Gas Care Pty Ltd v Barry Bros Specialised Services Pty Ltd [2012] VSCA 303, [16]–[19] (Hargrave AJA, Whelan JA agreeing).
In order to dispose of the application, however, it is appropriate that it simply be dismissed.
Conclusion
The appeal should be allowed. Judgment for the defendants in the County Court should be set aside and the matter should be remitted to the primary judge. It is envisaged that the plaintiffs in the County Court will seek leave to amend their statement of claim to reflect the manner in which their case was advanced in this Court.
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