Grant v Brewarrina Shire Council {S456-03)

[2004] HCATrans 94

[2004] HCATrans 094

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S456 of 2003

B e t w e e n -

WALTER ALFRED GRANT

Applicant

and

BREWARRINA SHIRE COUNCIL

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 APRIL 2004, AT 11.35 AM

Copyright in the High Court of Australia

MR S.W. TILMOUTH, QC:   May it please the Court, I appear with my learned friend, MR A.J.J. THOMPSON, for the applicant.  (instructed by Capital Lawyers)

MR B.J. GROSS, QC:   May it please the Court, I appear with my learned friend, MR D.J. WILLIAMS, for the respondent.  (instructed by Lovett and Green)

GLEESON CJ:   Yes, Mr Tilmouth.

MR TILMOUTH:   If the Court pleases.  I have just had handed to your Honours’ associates some supplementary materials which might help the Court better understand what the subject matter of this litigation below was.  Can I take your Honours to page 12 of that material which contains the plan.  Your Honours may see at the bottom of page 12 there are two blocks – this is at the bottom 15 per cent of the page – block 21, which is the applicant’s property, and block 22, which is Mr Washbrook’s property, the neighbour and also the Council employee.  The extent of the encroachment of the stables, your Honours, is that little parallel strip right towards the bottom right‑hand corner where there is a marking, 0.25.  That is the 250 millimetres which measures the extent of the encroachment in question.  Page 13 is just a reverse view.  The encroachment is a different map or plan but the encroachment is to the extent in the bottom left‑hand corner of block 22 in the shaded area, galvanised iron shed.  So your Honours can see it was a very small area indeed.

What happened was that Mr Washbrook, the neighbour, applied to put up a boundary fence and this encroachment was discovered.  That generated the letter in page 1 of these materials, which was the letter dated 25 August 1999, which drew attention to the encroachment.  Then at pages 2 and 3, your Honours, were the two respective notices of intention to give an order.  One, your Honours will see in the recital, was an order under section 121B, No 13, which related to the state of the buildings, and the one on page 3 was under section 121B, order 2.  Your Honours may see under terms of the proposed order, line 2, that both of them related to the encroachment.  The word “encroachment” is used on the first word on that line.  Then on pages 4 and 5 ‑ ‑ ‑

GLEESON CJ:   What else is erected on lot 22 apart from the galvanised iron shed?

MR TILMOUTH:   There were stables and about eight outbuildings and so on, your Honours.  It is quite substantial.  That is paragraph 4 of our written outline, page 43 of the application book:  stables, exercise yards and so on.  They are not, unfortunately, shown in the plans.  Then at pages 4 and 5 were the two notices of order subsequent to the first two documents which simply paralleled them, each of them invoking, if they could, section 121B, order 2 and order 13 respectively, of the Environmental Planning and Assessment Act.  Your Honours will see under the terms of the orders, line 1, each of them then required the applicant to execute such works and all things necessary to ensure there was no encroachment.  The same happened on the notice on page 5 of the materials.

The problem, in our submission, which led to the trespass and illegality, is that, first of all, your Honours will see there was no order.  There were only duplicated notices of intention to make an order in August and September respectively.  So there was a fatal threshold defect in the fact that there was no order as such, only the notice of intention.  The next problem, your Honours, was that none of these notices ever required the applicant to demolish.  They simply in effect required him to remedy the small encroachment.

The further difficulty was that in terms of section 121B of the Environmental Planning and Assessment Act, which is at pages 6 and following of the materials, there was never any power in the Council at all to demand a ratepayer to remedy an encroachment.  That was a matter for private law under other legislation.  So, in our submission, the difficulty in this case commenced with fundamental defects in form and in substance with what the Council gave notice to carry out.

GLEESON CJ:   The difficulty that gave rise to the ultimate decision against you was that your client did not suffer any harm as a result of what the Council did, was it not?

MR TILMOUTH:   Yes.

GLEESON CJ:   That was a finding of fact.  Indeed, I think the finding was that he obtained some benefit from it.

MR TILMOUTH:   Yes, your Honour.  To the extent of that issue, on the best view for the respondent, he got an advantage of about $1,000.  But the problem with that finding is that related only to property damage.  His Honour did not go on to complete the exercise so far as the law of trespass was concerned to consider the other aspects of compensatory damage when it comes to an action of this kind, being an action on the case.

GLEESON CJ:   He was awarded nominal damages.

MR TILMOUTH:   He was, and he was disallowed exemplary damages as well, and we submit they formed the basis of the two special leave points.  Your Honours, the finding in relation to there being no damages is at page 21 of the application book.  I think this is the finding your Honour the Chief Justice had in mind, at least initially.  His Honour on page 21 at paragraph 36 referred to Hunt v Severs in relation to compensatory damages and the fact that if there was no loss, there would be no compensation.  The problem ‑ ‑ ‑

GLEESON CJ:   The judge said your client had over a long period of time never been seen at this property, he did not live there.  The only occupant of the property was a horse.  The building that was knocked down was in such a state that it improved the value of the premises to knock it down.

MR TILMOUTH:   Indeed.  If the Court pleases, that only dealt with property damage.  His Honour did not go on to deal with damage that flows from a finding of trespass, quite separate from the question of property damage.  That is the kind of heads of damage to vindicate the trespass which has occurred and to vindicate the applicant’s rights and so on.  His Honour treated the matter, in our submission, as one that there is no property damage, therefore there is no damage at all.  The problem with the reference to Hunt v Severs and what flowed in paragraph 37, in my submission, is manifest.  Hunt v Severs was a negligence case where damage is the gist of the action.  This is an action in trespass where damage is assumed in point of law.

Plenty v Dillon, of course, stands for the proposition that the court should award substantial damages where trespass is made out.  In Plenty v Dillon, a decision of this Court, not a blade of grass was disturbed but the Court still held that the judge in that case was required to consider the other aspects of the damage under trespass quite apart from property damage.  The other problem with Hunt v Severs is that this Court declined to follow it in Kars v Kars.  Hunt v Severs was an action by a husband claiming gratuitous loss on account of his wife, who was also the tortfeasor.  In our submission, to begin the analogy, the analysis by reference to Hunt v Severs, with respect, completely misses the point.

On the question of exemplary damages, if the Court pleases, his Honour’s analysis commenced at the bottom of page 22 at paragraph 41.  What his Honour at trial said was:

In the present case the council has already suffered some punishment for its conduct in that it must cover its costs of demolishing the structures and clearing up the land, being $3,764.38.

In our submission, that is simply to profit from illegality. 

There is no need for any further deterrence.  Moreover, the council had no reason to believe that the notice which it had served was invalid and had no reason to believe that it was acting unlawfully when it entered the applicant’s land and demolished the buildings thereon.  At no time before the council entered and demolished did the applicant question the validity of the notice.

I will come back to that if I might in a moment.  His Honour therefore found:

There was no “conscious wrongdoing in contumelious disregard of another’s rights”.

That is Whitfeld v De Lauret, a decision of this Court.

If the Court pleases, in our submission, the second error of principle here justifying the grant of special leave is to equate the trigger to the discretion to grant exemplary damages as being one requiring knowledge of illegality.  In our submission, that is not the law at all.  What the law has for a long time required is merely conscious wrongdoing in the sense of volition and in contumelious disregard of another’s rights.  In this case what happened, putting it as barely as I can, is that, as I have demonstrated already, there was simply no power to require the removal of the encroachment.  The conditions of the Act giving rise to the power to do other things were not invoked.

The applicant was never called upon at all to demolish these buildings and the Council then came along and required removal of the encroachment, which it should not have done.  Having done that, the Council worker, who was also the neighbour, went back and simply levelled the property of all the structures which were on it.  In our submission, putting aside questions of fine intention of knowledge of illegality or knowledge of orders, that clearly has to be conduct which is a conscious wrongdoing and contumelious disregard to trigger the awarding of exemplary damages.

In our submission, the question of general principle is the question of really conflating two quite different tests:  knowledge of illegality on one hand, which may, of course, occur but does not have to, with simply conscious wrongdoing which, in our submission, are two quite different criteria.  Knowledge of illegality is normally associated with a misfeasance in a public office and deliberative torts of that kind but not in this area, in our submission.

Your Honours, can I also point out that insofar as his Honour held that the applicant did not question the validity of the notice, in the letter that he wrote to the Council, it is not surprising, if it was the case, in my submission, that he did not question it because he was never ever asked in the first place to demolish these buildings.  He was only ever asked to rectify the encroachment.  In the letter he wrote, your Honours, which is the one that his Honour no doubt had regard to, what he did do was point out that he had never received an order, in effect, requiring demolition.  What he further said – and the relevant quote from this is on page 16 of the supplementary index, which is yet another volume which your Honours already have – at page 16, paragraph 17 of the written submission on the application for leave at the Court of Appeal, part of the letter is quoted and what it said was:

“I further believe Council has acted without proper authority in this matter.  Therefore I hold no responsibility and liability for invoice number 3269.”

In our submission, when his Honour said, as he did at the top of page 23 in the passage I have just read, that the applicant did not question the validity of the notice, in our submission, when a lay person writes a letter saying that “Council has acted without proper authority in this matter”, that can be construed in no other way other than, in fact, questioning the very validity of what was done in the first place.

HEYDON J:   But the letter was written after the tort, was it not?

MR TILMOUTH:   Yes, it was, if the Court pleases.

HEYDON J:   But is not the trial judge speaking about he did not question the validity of the notice before the tort was committed?  There is no contradiction between the judgment and the matter.

MR TILMOUTH:   Assume he is for the moment – and, with respect, I am not sure that he is – the problem with it anyway is, as I have already pointed out, that Mr Grant was never asked to demolish these buildings in the first place, so he had nothing in that respect to complain about.  All he was asked to do was to remove the encroachment.  In fact, what he wrote in that letter, your Honours – I can hand up a copy if need be – is that he complained about receiving an order and so on and he said the building encroachment was rectified accordingly.  He actually stated in the letter he had rectified the problem and the only problem they had asked him to consider in the matter.

Finally, if I may, if I can go back to the question of trespass.  Accepting for the moment that there was no property damage and not wishing to attack that finding, the difficulty with that is, as I have already put in another way, is that once the trespass was made out, according to the decision of this Court in Plenty v Dillon, there was a requirement to award substantive damages for the trespass in the first place quite independently of any question of exemplary damages.

The relevant passages, your Honours, are quoted on page 47 of the application book in our written submission and I therefore do not trouble your Honours with them, but what I do wish to point out is that in Plenty v Dillon all that happened is that police officers came onto a farming property with a warrant, or a summons, I think, for the daughter of the plaintiffs in that case.  They were asked to leave.  All they did was put the summons for her on the seat of the car in which the plaintiffs in that case were seated and left.  The trial judge held that if there was a trespass, it was trifling and in effect momentary.

This Court held, as the passages at page 47 we have quoted indicate, that even though there was no damage – and this is about line 14 on that page – there was still the extra requirement regarding damages in trespass.  To award damages:

serves the purpose of vindicating the plaintiff’s right to the exclusive use and occupation of his or her land –

I would add, to vindicate the plaintiff’s right from unlawful intrusions like that that happened in this case when the Council, with respect, took rather drastic action and flattened the property.  So we submit, your Honours, in the first place then, there is an error in the failure to apply the plain doctrine handed down in Plenty v Dillon.  Nominal damages was not appropriate on the finding of trespass.  Even accepting there was no property damage, there were other heads of damage to consider.  The second error which we submit justifies the grant of special leave, as I have said, is either equating or conflating knowledge of illegality with the requirement of conscious wrongdoing, which are rather different matters, in our submission.

If the Court pleases, there is only one final point to make.  I know that this is an appeal from the Court of Appeal, of course, and I have dealt with the trial judge’s judgment, but what happened, in effect, was the Court of Appeal adopted the findings ‑ ‑ ‑

GLEESON CJ:   The Court of Appeal dealt with it on page 36.  They said the main point argued was Plenty v Dillon and they rejected that point.

MR TILMOUTH:   They did.  In the argument which is in the supplementary materials, your Honours, they also pointed out that his Honour made a finding that there was no knowledge of the illegality, although it does not reflect itself in the actual extempore reasons.  So the point in going back to the trial judgment is simply because the Court of Appeal, in effect, adopted what his Honour said.  May it please the Court.

GLEESON CJ:   Thank you.  Mr Gross, what do you say about Plenty v Dillon?

MR GROSS:   Your Honours, we say that that is a case vastly different from the present one.  If your Honours have Plenty v Dillon 171 CLR 635 at 654 to 655 in the judgment of Justices Gaudron and McHugh, your Honours will see it is a passage starting at the bottom of page 654. If I just briefly read it, about five lines from the bottom:

In addition, we would unhesitatingly reject the suggestion that this trespass was of a trifling nature.  The first and second respondents deliberately entered the appellant’s land against his express wish.  True it is that the entry itself caused no damage to the appellant’s land.  But the purpose of an action for trespass to land is not merely to compensate the plaintiff for damage to the land.  That action also serves the purpose of vindicating the plaintiff’s right to the exclusive use and occupation of his or her land.

I just move to the next passage which is omitted from the quote that appears in the applicant’s submissions:

Although the first and second respondents were acting honestly in the supposed execution of their duty, their entry was attended by circumstances of aggravation.  They entered as police officers with all the power of the State behind them, knowing that their entry was against the wish of the appellant and in circumstances likely to cause him distress.  It is not to the point that the appellant was unco‑operative or even unreasonable.  The first and second respondents had no right to enter his land.  The appellant was entitled to resist their entry.  If the occupier of property has a right not to be unlawfully invaded . . . the “right must be supported by an effective sanction –

Your Honours, it was the plaintiff’s home in Plenty v Dillon, it was an officer of the law asserting legal authority in what was plainly a hostile and resistant situation.  The occupants were present on the premises and, your Honours, the events were such as were likely to cause distress.

The case itself does not stand for some principle that you must get exemplary damages where land is trespassed upon.  Your Honours will see from just what I have quoted that the High Court looked at the particular context of the trespass in order to determine whether or not damages beyond nominal damages should be paid.  This was a dilapidated, dangerous property which had not been occupied in any meaningful sense by the plaintiff and where a horse had occasionally been seen, no doubt in a

situation of high risk.  The evidence given was that metal would fly from the premises and enter the adjacent premises where Mr Washbrook was, causing alarm and risk of injury and harm.

GLEESON CJ:   I think we understand.  We just wanted to hear what you had to say about Plenty v Dillon.

MR GROSS:   Yes.  So that the point we make is in coming in to deal with that situation, they are protecting an interest as distinct from asserting power in a high‑handed or inappropriate fashion.

GLEESON CJ:   Thank you.  Yes, Mr Tilmouth.

MR TILMOUTH:   Just one matter if I may, if the Court pleases.  If police officers behaving reasonably call at a property and are asked to leave and do no more before leaving than place a summons on the seat of a car, if that is worse than a council coming in clearly without any power and completely levelling a property, then, in our submission, the law that the respondent would seek to argue would be quite clearly grossly inadequate, if not hypocritical.  This has to be, in our submission, a worse case on any view of the facts in Plenty v Dillon.  If the Court pleases.

GLEESON CJ:   This is an application for special leave to appeal against a decision of the Court of Appeal of New South Wales refusing leave to appeal against the decision of a judge at first instance.  Having regard to the findings of fact made by the judge at first instance, there are insufficient prospects of success of an appeal to this Court to warrant a grant of special leave, and the application is refused with costs. 

AT 11.58 AM THE MATTER WAS CONCLUDED