Franklin v Di Bella

[1999] QCA 294

COURT OF APPEAL	[1999] QCA 294
PINCUS JA THOMAS JA JONES J
No 1567 of 1999
GEOFFREY THOMAS FRANKLIN THELMA RUTH FRANKLIN AND JOYCE HILDA DENT

Applicants/Defendants

and

JOSEPHINE DI BELLA	Respondent/Plaintiff
No 1567 of 1999A
GEOFFREY THOMAS FRANKLIN THELMA RUTH FRANKLIN AND JOYCE HILDA DENT	Appellants/Defendants
and
JOSEPHINE DI BELLA	Respondent/Plaintiff
TOWNSVILLE
..DATE 27/7/99

JUDGMENT
PINCUS JA: This is an application for leave to appeal from a judgment of His Honour Judge Wall

QC given in a civil action brought in the District Court. The learned Judge ultimately found for the

plaintiff, now respondent, on the basis that the defendants, now appellants, were guilty of nuisance.

The argument which has been advanced on the application for leave does not challenge his Honour's

finding with respect to liability, but is confined to two findings which his Honour made which, it

seems to me, probably influenced the view which the Judge took on the question of damages. His

Honour awarded damages against the appellants, and included in the award a component of interest.

When the matter came on, Mr Pope, who appeared for the applicant, informed us that, although he

had originally intended to take other points, his argument with respect to interest was confined to the

proposition that his Honour had no power to make the particular award of interest which was in fact

made. Some discussion ensued as to that point and Mr Pope ultimately decided to abandon it.

That is, although the application had some foundation initially in the proposition that there was an

error made in the award of interest, that is no longer put forward.
In the result then, the basis upon which the application was advanced was that leave should be

granted because the Judge made two errors, both of which had to do with the fairness of the

procedure which was adopted. Before identifying those errors, however, it is necessary to explain

the nature of the proceeding.

The parties, or rather, the respondent and the appellants, and in addition, the respondent's late

husband, found themselves as adjoining proprietors of land on which there were buildings, one of

which buildings turned out to be encroaching. It encroached on the appellants' land, and that led to

some discussion between the parties. In the building, there was a cafe, and there were proposals

advanced on either side. One of them was that there should be an allowance made in favour of the

appellants in respect of rental received on the cafe. Another one was that the respondent and her

late husband should pay for the encroachment, and thereby acquire title to it.

Either of those suggestions, if adopted, would have been able to avoid the unfortunate outcome

which ensued. But in fact, the parties did not agree upon the sharing of rental, and the appellants did

not pursue the proposition that they should accept money to get rid of the encroachment.

Shortly after the negotiations broke down, the nuisance was committed, and the way in which it was

committed was that the appellants partially demolished the cafe building in such a way as to remove

the encroachment and to expose the building to the weather, causing damage. The learned Judge

found that this was done, not in any accidental way, but purposefully. It was pleaded in the plaint,

as amended, that there was a bad motivation, to put it simply, on the part of the appellants, and in

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particular, Mr G T Franklin.

The Judge's finding with respect to the matter was as follows:

“I agree with Mr White's description of the defendants' conduct”

that is, the appellant's conduct -

“I agree with Mr White's description of the defendants' conduct, in particular, Mr G F
Franklin, who was the principal actor on behalf of the defendants, as opportunistic,
avaricious, conscious and deliberate, contumelious of the plaintiff's rights and feelings, high-

handed, arrogant, aggressive, malicious and callous.”

These rather strong findings are not challenged, except in the indirect way that Mr Pope says that the

Judge was in error in two of the points which he found against Mr Franklin. First Mr Pope

complains of a finding that the actions of Mr Franklin were motivated by the fact that he was to

receive no rental. Secondly, Mr Pope complains of the fact that the Judge found against his side,

that the conduct complained of causing the nuisance resulted in hardship and anguish to the

respondent and her late husband, and further, Mr Pope complains of the finding that this result was

intended.

The point simply is that, so Mr Pope says, in neither case was that specifically raised in evidence.

As to the motivation being based upon there being no rental agreement, Mr Pope says this should

have been directly put to Mr Franklin when he gave his evidence. Similarly, Mr Pope says it should

have been directly put to Mr Franklin to justify a finding against him that he intended to cause

hardship and anguish, and lastly, Mr Pope says that Mrs Di Bella, who gave evidence, did not say

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that this action caused hardship and anguish.

As against that, the argument is advanced that these were legitimate inferences which the Judge

could draw. It is also pointed out in the course of argument that Mr Franklin proved to be an

exceptionally uncooperative and difficult witness. He did not seem, with respect to him, to have any

care in the answers which he gave, and some of them were rather abusive. In these circumstances,

the cross-examination of Mr Franklin was pardonably, as it seems to me, abbreviated.

One comes, however, to the question, “Is there any manifest or any serious case of injustice in the

way in which the Judge approached the matter?”. Since the ultimate finding was plainly open on the

evidence, and indeed, it seems to me to be manifestly correct that Mr Franklin was badly motivated,

the fact that a couple of particularly bad motivations found by the Judge were not specifically put to

him does not seem to me to have caused any injustice.

As I think I have previously mentioned, perhaps unusually the plaint specifically raised bad motive

against Mr Franklin, and I refer in this regard to the contents of paragraph 9 of the amended plaint,

to paragraph 10, and to paragraph 11, as I have mentioned, there was a claim for exemplary

aggravated damages, which were awarded.

My view of the matter is that it does not, even prima facie, appear that the course of events was

unjust to the appellants, and in particular, to Mr Franklin, the witness. It appeared to me that it was

extremely unlikely that Mr Franklin would make any concession about either of these points if they

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were put to him and that the sequence of events made it quite reasonable for the Judge to conclude

that Mr Franklin's motivation was probably related to the failure of the proposed rental agreement.

As regards the causing of hardship and anguish, it was evident enough, of course, that this high-

handed action would cause hardship and anguish. It hardly needed proof, and it was a reasonable

inference that this was foreseen by Mr Franklin, and in that sense, intended by him.

Therefore, despite the argument advanced by Mr Pope, I, for myself, can see no real case of unfair

conduct on the part of the Judge or unjust conduct of the trial.

I would, therefore, on that ground, refuse the application for leave with costs.

THOMAS JA: I agree. The findings, in my view, could hardly have been otherwise than those that

were made by the learned trial Judge, and I see no lack of procedural fairness in what happened

before him. I see no basis whatever for the grant of leave which would be necessary having regard

to the amount in issue.

I agree with the orders proposed by Mr Justice Pincus.

JONES J: I also agree with the orders proposed.

...

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PINCUS JA: The orders will be that the application for leave to appeal is refused with costs, and

the notice of appeal is dismissed with costs.

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