Kudrin v City of Mandurah - [2009] WADC 75

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: KUDRIN & ANOR -v- CITY OF MANDURAH [2009] WADC 75

CORAM: DAVIS DCJ

HEARD: 22 APRIL 2009

DELIVERED : 21 MAY 2009

FILE NO/S: CIV 105 of 2008

BETWEEN: NIKOLAI KUDRIN
MARIA KUDRIN
Plaintiffs
AND
CITY OF MANDURAH
Defendant

Catchwords:

Appeal - Practice and procedure - Application for leave pursuant to s 47A of the Limitation Act 1935 - Leave unable to be granted retrospectively for writ already issued - Leave only able to be granted prospectively for causes of action which are not statute barred - Turns on own facts

Legislation:

Limitation Act 1935
Limitation Act 2005
Local Government (Miscellaneous Provisions) Act 1960

Result:

Appeal allowed in part
Leave granted to issue a fresh writ in respect of causes of action which are not statute barred

Representation:

Counsel:

Plaintiffs: In person
Defendant: Mr J Eller

Solicitors:

Plaintiffs: Not applicable
Defendant: John Eller

Case(s) referred to in judgment(s):

Argyropoulos v Layton [2002] NSWCA 183
Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1
Campbelltown City Council v Mackay (1989) 15 NSWLR 501
Clutha Ltd v Millar (No 3) [2002] NSWSC 642
Hawkins v Clayton (1986) 5 NSWLR 109
Matheson v Commissioner of Main Roads (2001) 25 WAR 269
Mount Albert Borough Council v Johnson [1979] 2 NZLR 234
Pyrenees Shire Council v Day (1998) 192 CLR 330
Read v Brown (1888) 22 QBD 128
Sheldon v McBeath (1993) Aust Torts Reports 81‑209
The Commonwealth v Cornell (2007) 229 CLR 519
The Minister for Community Welfare v Bennett, unreported; FCt SCt of WA; Library No 5060; 2 September 1983
Tobin v Dodd [2004] WASCA 288
Victorian Railways Commissioners v Casaccio [1961] VR 157
Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514

DAVIS DCJ: This appeal is from a decision of Deputy Registrar Hewitt made on 11 February 2009 when he granted an application brought by the defendant to strike out the plaintiffs' statement of claim on a number of grounds, including that it had been commenced without leave as required pursuant to s47A of the Limitation Act 1935 and was statute barred. The Deputy Registrar also dismissed two applications brought by the plaintiffs, one application for summary judgment and the other application for an extension of time to bring the action against the defendant pursuant to s47A of the Limitation Act 1935.
The Deputy Registrar held that the plaintiffs' cause of action against the defendant must have arisen at least by 1999 and was statute barred. Further, even if the plaintiffs' cause of action arose at some later time (identified as possibly 2001), the plaintiffs' application for an extension of time had been brought outside the six year limitation period.
The plaintiffs, Mr and Mrs Kudrin, who live at Lot 1153, No 11 Chestnut Rise, Mandurah, have for many years now had a problem with a retaining wall built by their next door neighbours, Bradley James and Maria Price ("the neighbours"), who live at Lot 1154, No 10 Chestnut Rise. In 1993 the plaintiffs erected a fibro cement fence along their side boundary. A short time later, in October 1993, the neighbours, whose property is on a higher level, built a retaining wall which ran along the same boundary and alongside the plaintiffs' fence. Mr Kudrin has always maintained that he knew from the day it was built that the retaining wall had no footing and had not been built in accordance with plans approved by the defendant, the City of Mandurah. Over a number of years the plaintiffs made complaints to the City about this wall, including in 1999 after their fence had been damaged by what the plaintiffs saw as movement in the wall. They hoped that the City would do something about removing the retaining wall. When that did not happen, on 15 January 2007 the plaintiffs issued a writ against the City.
The main argument raised by the plaintiffs on this appeal related to their application pursuant to s47A of the Limitation Act 1935. This raises issues as to:
1.What cause or causes of action the plaintiffs have against the City, and when that cause or those causes of action accrued;
2.Whether any cause of action is now statute barred;
3.Whether leave can be granted to the plaintiffs now, retrospectively, (and the order backdated to the date of the writ), or only prospectively;
4.The factors for determination for a grant of leave under s47A, and whether they are met in this case.

Background facts

The plaintiffs are self represented. The background facts are set out in the statement of claim and also in an affidavit of Mr Kudrin sworn 11 November 2008. Neither of these documents filed by the plaintiffs are expressed in the way that would usually be found in documents prepared by solicitors.
Mr Kudrin's affidavit is lengthy and refers to a number of documents and items of correspondence, none of which is annexed. During the appeal hearing I requested to see a notice which according to Mr Kudrin's affidavit was issued by the City to the neighbours in February 2003, described in Mr Kudrin's affidavit as a Section 401 Notice. That then led to Mr Kudrin and Mr Eller, counsel for the City, handing up other documents, which I received, having first ascertained that these were documents referred to in Mr Kudrin's affidavit and also giving counsel for the City the opportunity to inspect those he had not seen. The copy documents which I received (which are now on the court file numbered, dated and initialled by me) are as follows:
1.A drawing by Ewing Consulting Engineers Pty Ltd ("Ewing Consulting Engineers") showing "typical section for wall subject to pedestrian and fence loading" and "typical section for wall subject to driveway and vehicle loading", a further drawing entitled "B M Price – Replica of the wall that was built on the Lot 1154 in Oct. 1993" and two attached photographs of the boundary, showing the fence and the wall;
2.A letter from the City of Mandurah to the plaintiffs dated 30 September 2007;
3.A memorandum from Stephen Goode, Chief Executive Officer, to Councillor Gary Brown, dated 6 August 2001;
4.A letter from BJ & M Price to the plaintiffs dated 19 November 2002;
5.A document entitled "Notice – Local Government (Miscellaneous Provisions) Act 1960 – Section 401" from the City of Mandurah to Bradley James and Maria Price, dated 20 February 2003. I will refer to this as the "Section 401 Notice";
6.A report from Ewing Consulting Engineers entitled "Lot 1154 (HN 10) Chestnut Rise, Halls Head, Mandurah Western Retaining Wall" and dated 12 March 2003;
7.A letter from the Minister for Housing and Works to Mr B Price dated 4 June 2003;
8.A letter from the City of Mandurah to BJ & MP Price dated 18 June 2003;
9.A survey dated 3 July 2003 from Mandurah Survey Services;
10.A report from Ewing Consulting Engineers entitled "Lot 1154 (HN 10) Chestnut Rise, Halls Head, Mandurah Western Retaining Wall" Report No. 2666/2 and dated 25 July 2003;
11.A letter from the City of Mandurah to the plaintiffs dated 12 August 2003;
12.A letter from Dr Kim Hames MLA to Mr Mark Newman, the Chief Executive Officer, City of Mandurah, dated 24 May 2006;
13.A letter from Mr Mark Newman, the Chief Executive Officer, City of Mandurah, to Dr Kim Hames MLA dated 28 June 2006.
The following relevant facts are taken from those documents and Mr Kudrin's affidavit.
When the neighbours built the retaining wall in October 1993 the plaintiffs were building their own house and Mr Kudrin says he was able to see the erection of the wall. He says it was built with limestone rubble, soil was not compacted and no footing of 300mm deep was dug out which, as Mr Kudrin says in his affidavit, was most important due to the sloping terrain. Mr Kudrin spoke to the City's building surveyor, R Baron, expressing his concern about the way the wall was being built and asking why the wall was not built to the plans approved by the City. According to Mr Kudrin, Mr Baron advised that the wall would cost less, be stronger due to extra cement to be added and "ugliness won't be seen" because of the fence in front of it.
In 1995 Mr Kudrin telephoned the City and Mr R Baron agreed to come and have a look at the wall. Mr Kudrin told Mr Baron that the wall had moved. Mr Baron told the neighbours to remove the sand which had fallen down the gap between the fence and the wall and to increase the height of the wall by about 300 millimetres to stop sand falling in the gap.
In 1997 Mr Kudrin made a complaint to Councillor Creswell that the retaining wall was moving, putting pressure on the fence. On 24 March 1997 the plaintiffs received a letter from Mr M Newman, then the Director of Community and Development Services for the City, asking the plaintiffs to contact his office to arrange a meeting with council officers. After some delays (the reasons for which, as given by Mr Kudrin, it is not necessary to recite) an appointment was made with an officer from the building surveyor's office in August 1997.
On 12 August 1997 Mr G Worth, a building surveyor from the City, came to look at the wall and took measurements of the gap between the fence and the wall. After writing these measurements in a file note, he said he would come again in a few months. Later on 15 August 1997 the plaintiffs received a letter from Mr Worth advising to "cut short the infill fence to ensure no damage is done to the house wall by the possible movement of the retaining wall" and advising the plaintiffs to contact a building surveyor in a few months' time to arrange a further inspection to determine if the wall had moved from the points recorded on 12 August 1997.
Another inspection was undertaken by the City on 22 September 1997. Following this inspection, by letter dated 30 September 1997 the City wrote to the plaintiffs advising that there was no physical appearance of soil movement or conditions to indicate that the retaining wall was structurally unsound, it appeared that sand between the fence and the wall was causing defection of the fence sheeting, and a structural engineer's certificate indicates the wall is sound. The letter concluded that there was no obvious reason for Council to take action regarding structural problems relating to the wall and suggested, in light of the concerns that the plaintiffs had about various issues regarding this wall "from the time of construction" that they take independent advice.
In February 1999 18 sheets of the plaintiffs' fence cracked at their base. Mr Kudrin notified the City. The damage was inspected by the City's engineers, A Claydon and B Joyce. After inspecting the wall and damage to the fence they concluded that the wall was structurally sound and that the sand between the wall and the fence was the problem. They told the neighbours to remove the sand and install new sheets.
On 16 March 1999 a further seven sheets, which were towards the back of the fence, cracked and these were replaced. (I have presumed from Mr Kudrin's affidavit that these were replaced by the neighbours either at the same time as or shortly after the other 18 sheets were replaced.)
In May 2001 the plaintiffs noticed that more sheets of the fence had cracked, so they called Councillor Post. He and the City's manager of Technical Services, Mr Beaverstock, came to inspect the damage. Mr Beaverstock's opinion, according to Mr Kudrin, was that the wall had moved. Mr Kudrin told him that the wall had no footing. Mr Beaverstock attended again the next day with another man who used a penetrometer to check the compaction of the soil.
On 21 May 2001 the City's engineer, A Claydon, wrote and advised the plaintiffs that the wall was "OK" and the problem was sand build up between the wall and the fence, although (according to Mr Kudrin) there was also concern expressed in this letter about the lack of compaction at the base of the wall which should be checked as soon as possible. Mr Claydon advised the plaintiffs to seek independent advice.
On 6 August 2001 the Chief Executive Officer of the City, following inquiries he made and a review of the files, wrote a memorandum to Councillor Gary Brown about the retaining wall. In that memo he stated that there was no evidence of the wall not being built to design.
On 15 October 2001 a 7 metre section of the retaining wall "had to be removed". Mr Kudrin in his affidavit described this part of the wall as being in a "bad state, it was ready to fall".
In October 2002, after windy weather, a further 11 sheets of the fence collapsed. The City was informed and Councillor Brown and two officers from the City, Mr Worth the building surveyor and Mr Newman, attended to inspect the wall. Mr Kudrin says that it was suggested to him that a steel rail cemented into the soil in front of the wall should stop it from moving.
By this stage neighbourly relations between the plaintiffs and the neighbours were not good. From the letter dated 19 November 2002 written by the neighbours to Mr and Mrs Kudrin, it appears that Mr Kudrin requested the neighbours to repair the plaintiffs' fence without access to the plaintiffs' property. The neighbours' letter stated:
"We contracted an engineer to draw up the plans and make changes to them after your insistence on installing the fence on the boundary first because you wanted supersix on all three sides of your property boundaries. You did not want to see a limestone block wall, hence our engineer suggested a limestone mass wall and was paid to make the changes to the plan which were submitted to the Mandurah Council for approval …"
In November 2002 the plaintiffs made an insurance claim for the collapsed fence to their insurance company, Allianz Australia Insurance. Allianz sent an engineer to inspect the fence and the cause of its collapse. In December 2002 Allianz sent the plaintiffs a letter and a copy of the engineer's report, explaining that Allianz would not pay for the damage to the fence. According to Mr Kudrin's affidavit, the engineer's report obtained by Allianz indicated that the problem with the retaining wall was "construction related, poor workmanship, inferior material".
It is not clear to me from either Mr Kudrin's affidavit or the documents how this occurred, but the City then changed its position. From a denial that the retaining wall had not been built to design, coupled with a denial that there was any problem with that wall, the City appeared to accept that the retaining wall had not been constructed in accordance with the approved plans.
In December 2002 the City requested its solicitors to draft a Notice to the neighbours in relation to the retaining wall, pursuant to s 401 of the Local Government (Miscellaneous Provisions) Act 1960. That Act was formerly the Local Government Act 1960. Section 401(1)(b) gives a local government the power to give to the owner of a building written notice of anything in the construction of the building which is not in compliance with or is a departure from the plans and specifications for the building, of which plans and specifications the approval of the local government has been obtained, and requiring the owner to pull down or alter the building so as to remove the cause of the objection. The section goes on to provide that the owner "shall comply with the requisition" unless he has right of appeal against the requisition and the requisition is quashed on appeal. For a notice to pull down or alter a building a right of appeal is given, pursuant to s 401(3). As the Act stood in 2003, the right of appeal was to the Minister. However, there are consequences if the appeal is dismissed and the owner does not within 14 days of the dismissal proceed to comply with the requisitions in the notice. Section 401(7), as it stood at the time, provided:
"(7) If the builder or owner on whom a notice mentioned in subsection (1) has been served does not –
….
(b)if an appeal under this section is dismissed, within 14 days of the dismissal,
comply with the requisitions in the notice, a court of petty sessions on complaint by the local government that he has not so complied with all or any of the requisitions in the notice and that the requisitions in respect of which the complaint is made are not the subject of appeal under this section, may order the person on whom the notice has been served to comply with the requisitions within a time to be fixed by the order, and the court may make such order as to the costs of and incidental to the proceedings relating to the order as the court thinks fit."
Further, s 401(8) provided that if an order under s 401(7) is not complied with, the local government "may lawfully enter upon the land on which the building is erected … and give effect to the requisitions and may, in a court of competent jurisdiction, recover the expense of doing so from the owner … on whom the notice was served".
In February 2003 the City issued the Section 401 Notice to the neighbours. The Notice stated that "the matters listed in the Schedule are departures from the approved plans and specifications for the Building approved by the City" and requested the neighbours to "alter the building so as to remove the cause of the objection". The matter in the Schedule was "A retaining wall which had not been constructed in accordance with the approved plans."
It is apparent from the Section 401 Notice that the City now acknowledged that the retaining wall had not been built in accordance with the approved plans.
The neighbours appealed to the Minister for Housing and Works in relation to this Section 401 Notice. To support their appeal they obtained an engineer's report from Ewing Consulting Engineers dated 12 March 2003. Significantly, this report confirmed that the wall was originally designed by Ewing Consulting Engineers, but not built to that design in that a wall "toe" buried below ground was not installed and limestone boulders were used rather than blocks for the wall construction. Ewing Consulting Engineers reported, however, following an inspection carried out on 26 February 2003, that there was no evidence of any significant movement in the wall. Ewing Consulting Engineers had certified that the wall was adequate in October 1993, the wall had been confirmed as structurally sound by the City of Mandurah in February 1999 and was "herewith certified as adequate in its present state".
In June 2003 the Minister dismissed the neighbours' appeal from the City's Section 401 Notice and advised the neighbours of this in a letter dated 4 June 2003. In this letter the Minister stated he was mindful from advice from the City of Mandurah that:
"A survey was undertaken using the original levels and datum given for the dwelling on No 10 to determine if the levels along the boundary that currently exist on No 11 have been altered. This indicated that the levels were similar with a maximum difference of 120mm. The required toe depth specified by the engineer's detail was required to be 300mm. Given this information the City was able to service notice pursuant to Section 401(1)(b) of the Local Government (Miscellaneous Provisions) Act 1960 in that the wall had not been constructed in accordance with the approved plans.
The City has also advised that at this time there is no evidence as to whether the retaining wall has been constructed within the property boundary of No 10 Chestnut Rise."
Following this dismissal of the appeal, by letter dated 18 June 2003 the City wrote to the neighbours advising that the City was not satisfied with the structural integrity of the retaining wall and would prefer that the existing retaining wall be completely removed and replaced by a properly constructed wall. As an alternative the City advised that it was prepared to consider allowing the existing retaining wall to remain if the neighbours could provide sufficient evidence that the wall was "structurally adequate or can be altered to be structurally adequate, face finished and be contained within the property boundaries of No 10".

The neighbours then obtained a survey from Mandurah Survey Services dated 3 July 2003 which stated:
"The rock retaining wall on the western boundary has a capping on top which occupies the position as shown. The wall appears to be vertical with some rock edges encroaching over the boundary to various degrees. This encroachment could be trimmed to keep the wall wholly within the boundary".
The attached survey showed an encroachment at two positions along the boundary. At one end of the boundary there was overhanging rock of 0.02 (2 millimetres) and 0.06 (6 millimetres). At the other end (the street end) there was an encroachment of capping of 0.02 and 0.06. Apart from these two locations the survey showed the wall was clear of the boundary and inside the neighbours' property.
The neighbours then obtained another report from Ewing Consulting Engineers dated 25 July 2003 which referred to the earlier report dated 12 March 2003, and stated that the retaining wall was structurally sound. Ewing Consulting Engineers advised that the capping had been added after the original wall construction and could be readily removed without any structural effect.
By letter dated 12 August 2003 the City wrote to the plaintiffs advising that the neighbours had obtained a survey which indicated that there were only three points of encroachment by a maximum of 6 millimetres and the remainder of the wall was within their boundary. The City's letter also set out the conclusions from Ewing Consulting Engineers' reports on the structural adequacy of the retaining wall. After addressing other issues to do with the finishing or screening of the wall, the letter went on:
"The City considers that the structural adequacy, location and method of face finishing the retaining wall on the subject property have been adequately addressed and does not intend to take any further action in relation to this matter".
The plaintiffs went to see the City following this letter. The plaintiffs also began an action against the neighbours in the Magistrates Court under the Dividing Fences Act, although it is not clear from Mr Kudrin's affidavit exactly when that action was commenced. Mr Kudrin has advised that this action was dismissed on the ground that the Magistrates Court had no jurisdiction over the matter.
After a hearing in the Magistrate's Court in which the neighbours testified that the wall was over the boundary only 6 millimetres, in August 2004 the plaintiffs obtained their own survey from Fugro Spatial Solutions. Mr Kudrin has deposed to the fact that it was established by this survey that the retaining wall encroached over the boundary at seven points and the distance by which the wall encroached varied between 50 millimetres and 90 millimetres.
There was an attempt to have a mediation between the City and the plaintiffs and their neighbours, however, that mediation did not take place,
The plaintiffs then sought the assistance of their local member of parliament, Dr K Hames, who asked the Chief Executive Officer of the City for assistance in resolving the problem with the retaining wall. Dr Hames wrote by letter dated 9 May 2005, in response to which the City advised that it was not aware that the retaining wall was moving.
Although it is not apparent from Mr Kudrin's affidavit, presumably the efforts of Dr Hames produced another change in the City's position, because in November 2005 the City advised by letter that it would hire a licensed surveyor to find out if the retaining wall was moving. The plaintiffs gave permission for that surveyor to enter their property.
In early 2006 the City obtained a survey from Fugro Spatial Solutions. Mr Kudrin deposes to the fact that on 27 February 2006 the City wrote to the neighbours referring to a survey conducted by Fugro Spatial Solutions on 10 January 2006 which found that in 12 locations the retaining wall had moved on average 14.4 millimetres into Lot 1153 (the plaintiffs' property). The City sought confirmation from the neighbours of their intention to rectify, remove or replace the retaining wall.
By a letter dated 24 May 2006 Dr Hames followed matters up with the City on the plaintiffs' behalf, stating:
"Mr Kudrin is becoming increasingly frustrated at the time taken to rectify this problem. You will be aware that he has now been claiming that the wall has been moving for many years.
While he is happy that his claim has now been proven correct, he had the impression that your last letter to his neighbour would have resulted in the problem being resolved more quickly".
The Chief Executive Officer of the City wrote in response to Dr Hames, by letter dated 28 June 2006, advising that the neighbours had (again) obtained their own reports which had been provided to the City and denied that there was any movement in the wall. The letter stated that in view of the conflict between the two survey reports a query arose as to what course of action was open to the City.
There were further communications between Dr Hames on behalf of the plaintiffs and the City in relation to this matter between July and November 2006.
On 15 January 2007 the plaintiffs issued the writ in this action against the City of Mandurah.

The plaintiffs' pleaded case

In the indorsement on the writ the plaintiffs set out a few of the facts, including that the retaining wall was not erected according to the approved plan, the plaintiffs' protests to the City and the City's insistence that the retaining wall is structurally sound. The plaintiffs claimed that the retaining wall was 10 millimetres on their land. The plaintiffs wanted the retaining wall to be dismantled by the City. The plaintiffs also wanted monetary compensation from the City for "11 years of accrual, unprofessional treatment we were forced to endure, constant pressure to accept exorbitant demands, conspiracy lies. We were forced to seek medical help." I shall refer to this aspect of the plaintiffs' claim as the "emotional distress" claim.
The statement of claim filed sets out that "Retaining wall was erected not to the plan and specifications provided by Ewing Consulting Engineers and approved by the defendant in July 1993", and then sets out a brief chronology of events. The statement of claim repeats some facts relating to the City's failure to act on the plaintiff's complaints made between 1997 and 2001. The statement of claim recites the facts relating to the Section 401 Notice which was issued by the City in February 2003, the Minister's dismissal of the neighbour's appeal and the correspondence from the City to the plaintiffs dated 12 August 2003. There is reference to the survey conducted by Fugro Spatial Solutions, the correspondence dated 15 June 2005 from Dr Hames to the City and then the letter written by the City to the neighbours dated 27 February 2006. The emotional distress claim is repeated, but with an additional statement that the plaintiffs have been under medical treatment since 2002.
The plaintiffs sought an extension of time for the bringing of this action by chamber summons dated 30 September 2008, which stated "We, plaintiffs, asking the Court to extend time, under Limitation Act 1935 so that we commence an action to recover the part of our land that is occupied by the moving retaining wall erected on the adjoining Lot. The land is in adverse possessions (sic) since July 2003".
In his affidavit sworn 11 November 2008 Mr Kudrin set out the relief which the plaintiffs want against the City as being:
1.removal of the retaining wall;
2.installation of a fibre cement fence on the boundary between lots 1153 and 1154;
3.payment of surveyors fees of $755.25 for two surveys carried out on 20 May 2004 and 12 April 2005;
4.payment of $322 plus interest for professional advice obtained on 11 June 2004, 23 July 2004 and 4 October 2006;
5.payment of disbursements of $300 for printing of documents, travelling time and telephone calls;
6.payment of $314.95 for the infill fence that was cut short to relieve pressure on the house fall; and
7."compensation for the 11 years of accrual unprofessional treatment the plaintiffs have had to endure" i.e. the emotional distress claim.
Given that the plaintiffs are in person, the Court needs to examine with some care the claim which the plaintiffs wish to litigate and determine whether, notwithstanding a poorly expressed or unstructured statement of claim, there are facts alleged which, if proved, would entitle the plaintiffs to some relief. The Court must be careful to examine what is put to it by a party in person to ensure that party has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done: Tobin v Dodd [2004] WASCA 288 at [13] ‑ [18].
The Deputy Registrar took the view that the essence of the plaintiffs' case was that the retaining wall was not constructed in accordance with the plans approved by the City in 1993. Negligence on the part of the City might be established by showing that the City was under a duty of care to ensure that the retaining wall had been properly constructed in accordance with the approved plans, breached that duty by failing to ensure that it was so constructed, and as a consequence the plaintiffs have suffered injury because of the movement in the retaining wall. The City's failure to adequately check the construction of the wall in light of the complaints made by the plaintiffs may give rise to a cause of action: Mount Albert Borough Council v Johnson[1979] 2 NZLR 234; Pyrenees Shire Council v Day (1998) 192 CLR 330 at [143] and [187].
So far as the emotional distress claim is concerned, there is authority that a plaintiff is entitled to damages for vexation, worry, distress and inconvenience which a plaintiff suffers as a reasonably foreseeable consequence of the defendant's negligence, even where there is no recognised psychiatric illness or "nervous shock", when that vexation, worry, distress and inconvenience is consequent upon some physical injury or property damage. Compensation for that sort of damage will, however, only be modest: Campbelltown City Council v Mackay (1989) 15 NSWLR 501 at 504, 511; Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1 at 37 ff.
In my view there is no basis for a claim by the plaintiffs against the City for "adverse possession". The plaintiffs could have no such claim against the City since the land adjoining the plaintiffs' property on which the retaining wall has been built is not the City's land, but is owned and occupied by the neighbours. Any claim for adverse possession would have to be brought against the neighbours.
In light of the pleaded facts and submissions by the plaintiffs which emphasised the Section 401 Notice, during the hearing of this appeal I raised with counsel for the City whether the plaintiffs may have an argument that further steps ought to have been taken by the City on the Section 401 Notice, following the Minister's dismissal of the neighbour's appeal from that Notice in June 2003. The submission made by counsel for the City was, in effect, that in light of the reports from Ewing Consulting Engineers that the wall was structurally sound, there was an issue as to what more the City could have done.
I have now reviewed this in more detail and I consider, having regard to the provisions of s 401 of the Local Government (Miscellaneous Provisions) Act 1960, that the plaintiffs have an arguable case that the City ought to have done more, and ensured that the neighbours complied with the Section 401 Notice. The Section 401 Notice was a statutory direction to the neighbours. After the neighbours' appeal was dismissed by the Minister on 4 June 2003, the neighbours had to then comply with that Section 401 Notice. When nothing had been done by the neighbours within the next fourteen days, the City could have made, but did not make, a complaint to the Court of Petty Sessions (as it was then known) as provided for in s 401(7).
I consider that in these circumstances the plaintiffs have an arguable further cause of action, arising from the facts relating to the Section 401 Notice, on the basis that the City ought to have taken action pursuant to its statutory powers, which the City first invoked by the issue of the Section 401 Notice in February 2003, to eliminate further movement in the retaining wall: Pyrenees Shire Council v Day (supra) per Brennan CJ at [14], [24] to [28]; Toohey J at [56], [60]; McHugh J at [119] and [120]; Gummow J at [177], [178]; Kirby J at [254] and [255]. The Section 401 Notice as issued by the City accepted that the retaining wall had not been built in accordance with the approved plans. This was confirmed in the engineer's report which the neighbours obtained from Ewing Consulting Engineers dated 12 March 2003. Having regard to the provisions of s 401(7) and (8) of the Local Government (Miscellaneous Provisions) Act 1960, the City in its letter to the neighbours dated 18 June 2003 gave the neighbours an alternative which arguably it was not open to the City to give. Having failed to take the step of enforcing the Section 401 Notice pursuant to s 401(7), the risk of harm to the plaintiffs increased and they have arguably suffered damage as a consequence because of further movement in the wall and, now, encroachment of that wall onto their property with a risk of further damage: Pyrenees Shire Council v Day(supra) at [47], [120] and [224].

When did the plaintiffs' cause of action accrue?

So far as the plaintiffs might have a cause of action against the City in negligence or other tort, time begins to run when damage first occurs: The Commonwealth v Cornell (2007) 229 CLR 519 at 523; Hawkins v Clayton (1986) 5 NSWLR 109 at 122. Once damage is sustained the cause of action is then complete even though further damage is later sustained. The suffering of some damage will in general start time running, even although the damage continues to grow. The running of time is not suspended until all the damage which will be suffered has ceased to flow, nor does further damage constitute a fresh cause of action: Sheldon v McBeath (1993) Aust Torts Reports 81‑209 at 62,081.
There is no issue that the plaintiffs knew that the retaining wall was built without a footing and made very early complaints to the City that the wall was moving, and repeated those complaints on each occasion their fence was damaged.
To the extent that the plaintiffs may have a claim in negligence based upon the City having a duty to ensure that the retaining wall had in fact been constructed in accordance with the approved plans, failed to do so and as a consequence this led to the movement of the wall, that cause of action accrued when major parts of the plaintiffs' fence were significantly cracked and damaged. Most of that damage had occurred by 16 March 1999. In my view any cause of action that the plaintiffs had against the City on this basis had accrued by that date.
To the extent that the plaintiffs may have a claim for damages for emotional distress consequent upon the City's negligence, that claim also accrued when the emotional distress was first suffered. On the information in the writ and statement of claim, this was suffered more than 11 years ago and, at the latest, at the time they received medical treatment in 2002.
In my view, the fact the plaintiffs may now have some proof of their claim that the wall has in fact moved does not alter the fact that detectable damage from the retaining wall occurred in 1999. That damage was sufficient to complete the plaintiffs' cause of action in negligence, so far as it was based on breaches of a duty on the City to check the wall and ensure that it had been constructed in accordance with the approved plans.
Proof of the cause of action must be distinguished from the cause of action itself. A cause of action is a factual situation, the existence of which entitles one person to obtain from the court a remedy against the other person. The evidence which is necessary to prove each fact is a different thing entirely. As was said by Lord Esher MR in Read v Brown (1888) 22 QBD 128 at 131:
"A cause of action has been defined as being: '… every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved".
The plaintiffs in further written submissions which the court received on 28 April 2008, and which were forward to the solicitors for the City inviting further submissions in response, have suggested that the City's negligence commenced in October 1993 in "allowing the defective retaining wall to be built", and is a continuing one.
Assuming a continuing duty of care in tort, a fresh or separate cause of action will only arise if a fresh breach causes loss going beyond the loss resulting from the earlier cause of action: see Hawkins v Clayton (1986) 5 NSWLR 109 at 124‑125 per Glass JA; Sheldon v McBeath at 62,077‑8, 62,081‑3; Argyropoulos v Layton [2002] NSWCA 183 at [6] and [7]. If the continuing duty is contractual, it is possible to say the continuing failure to discharge it gives rise to a series of causes of action while the failure continues. This is because contractual causes of action accrue upon breach. In tort, however, where damage is an essential element of a cause of action, the position is different. Even if it were correct to say that breaches repeatedly occurred so long as the failure by the City to discharge the duty of care continued, it would not follow that a series of separate causes of action have accrued to the plaintiffs. If measurable damage occurs then that is enough to complete the cause of action in negligence, even though further damage accrues: see the discussion of this in Clutha Ltd v Millar (No 3) [2002] NSWSC 642 at [11] onwards, particularly at [20].
I therefore do not consider that the City's continuing failure of its duty to check the retaining wall in light of the complaints made by the plaintiffs, and ensure that the retaining wall had been constructed in accordance with the approved plans, gave rise to separate cause of action for each breach of that duty.
The position arguably changed, however, once the City accepted, in or about late 2002, that the retaining wall had not been built in accordance with the approved plans. As I have already observed in [53] ‑ [54] above, the plaintiffs have an arguable cause of action based on an allegation that once the City issued the Section 401 Notice, there was a duty on the City to enforce that Notice and, after the neighbours' appeal to the Minister was dismissed in June 2003, there was a failure by the City to ensure that the neighbours complied with that Notice. That arguably constitutes a fresh or distinct cause of action against the City on the basis of a new and different breach of duty, namely its failure to exercise its statutory powers. That arose after the earlier breaches and there is a different factual basis for that duty. That breach of a new and different duty arguably caused loss going beyond the loss resulting from the barred cause of action in negligence, because of the encroachment of the retaining wall onto the plaintiffs' property, which is damage in addition to the damage to the fence: Argyropoulos v Layton (supra); Clutha Ltd v Millar (No 3) at [28] to [38]. That fresh cause of action would have accrued at the earliest on or about fourteen days after the Minister's dismissal of the appeal, i.e. on or about 18 June 2003, during which time the neighbours were given time to comply with the Notice, as set out in s 401(7) of the Local Government (Miscellaneous Provisions) Act 1960.

Are any of the plaintiffs' claims against the City of Mandurah statute barred?

In Western Australia the limitation period for the commencement of an action in negligence and other torts is six years: see the Limitation Act 1935 s 38(c).
The Limitation Act 1935 was appealed and replaced by the Limitation Act 2005 which came into operation on 15 November 2005. However the Limitation Legislation Amendment and Repeal Act 2005, s 4(2) provides that the Limitation Act 1935 continues to apply, despite its repeal and enactment of the Limitation Act 2005, to causes of action that accrued before the commencement day of the Limitation Act 2005. Section 4(2) of the Limitation Act 2005 also provides that the limitation periods provided for under the 2005 Act only apply to causes of action which accrued on or after the commencement date of that Act, which was 15 November 2005.
Under the Limitation Act 1935 the court has no discretion to extend limitation periods to enable the plaintiffs to bring an action against the City after the expiration of the six year limitation period.
Further, there are special limitation rules applicable to actions against public authorities and local government authorities, contained in s 47A. By s 47A(1)(a) and (b) of the Limitation Act 1935 the plaintiffs could not bring an action against the City unless they had given to the City, as soon as practicable as after the cause of action accrued, notice in writing giving reasonable information of the circumstances upon which the proposed action will be based, and the action is commenced before the expiration of one year from the date on which the cause of action accrued. If the action is not commenced within that one year period, s 47A(3) of the Limitation Act 1935 permits an application to be made to the court for leave to bring an action at any time before the expiration of six years from the date of accrual of the cause of action.
It is, of course, undesirable that limitation questions should be decided in interlocutory proceedings in advance of trial, except in the clearest of cases. This is because it may not be known or confidently stated exactly when the damage was actually sustained by the plaintiff and the circumstances in which it arose: Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514 at 533 ‑ 534.
From the background facts it can be seen that damage to the plaintiffs' property as a result of the retaining wall arose at various times, with significant damage to the plaintiffs' fence occurring in 1999, at the latest by 16 March 1999.
As I have discussed, any cause of action which the plaintiffs may have based upon the City's negligence in failing to ensure that the retaining wall was constructed in accordance with the approved plans, arose in 1999. The six year limitation period thus expired at the latest in 2005, and that cause of action is now, and was at the time the plaintiffs issued their writ in February 2007, statute barred.
Similarly, any claim for emotional distress consequent upon that negligence, having first arisen more than 11 years ago, is also not maintainable. The six year limitation period for that consequential claim has also expired and that claim is statute barred.
The plaintiffs do, however, arguably have a separate cause of action against the City on the basis of its failure to exercise its statutory powers and enforce the Section 401 Notice after the Minister's dismissal of the neighbour's appeal on 4 June 2003. As I have discussed at [64] above, the six year limitation period in relation to that cause of action accrued at the earliest on or about 18 June 2003, which is 14 days after the Minister's dismissal of the neighbour's appeal. The six year limitation period in relation to that cause of action has therefore not yet expired.

Can leave now be granted to the plaintiffs in relation to this action?

An application for leave to commence proceedings against a local government authority can only be brought, and leave can only be granted to commence proceedings, within the six year limitation period. Further, the Court cannot grant leave pursuant to s47A of the Limitation Act 1935 to commence an action against a local government authority retrospectively. Leave can only be granted prospectively. Once a writ has been issued, a grant of leave cannot be backdated so as to validate an action which has already been commenced: Matheson v Commissioner of Main Roads (2001) 25 WAR 269 per Murray J at [24] to [30], [36], [45] and [46].
It follows that if the plaintiffs wished to commence action against the City of Mandurah, they needed to obtain that leave before filing any writ.
I am unable to now, retrospectively, grant leave for the writ issued by the plaintiffs in January 2007.
Further, any cause of action which the plaintiffs have based on the alleged negligence of the City giving rise to damage which occurred to the plaintiffs' fence or property between 1993 and 2002, or consequential emotional distress to the plaintiffs which also arose during that same period, is statute barred. I am unable to "extend time" for the bringing of such a cause of action.
I can, however, grant leave to the plaintiffs prospectively to issue a fresh writ for any cause of action which the plaintiffs may have against the City which is not statute barred. The plaintiffs do have, for the reasons I have already discussed, an arguable cause of action arising from the City's failure to enforce the section 401 Notice, following the Minister's dismissal of the neighbours' appeal against that Notice on 4 June 2003.
In the circumstances of this appeal, I have considered whether any application for leave to proceed with that cause of action against the City pursuant to s47A of the Limitation Act 1935 would have to be the subject of a fresh application to this Court, or whether I can deal with it on this appeal.
This appeal is a hearing de novo. The District Court Rules, r 24, gives the Court the power to make any procedural direction that in the Court's opinion it is just to make in a case to facilitate the case being conducted and concluded efficiently, economically and expeditiously. In this case, the six year time limit for any cause of action which the plaintiffs may have against the City in relation to its failure to enforce the Section 401 Notice may expire soon, in June 2009. In my view it would not be efficient, economical or just to require the plaintiffs to file a fresh application by way of originating summons for leave to commence proceedings. Any fresh application filed by the plaintiffs will contain the same information as the application which is the subject of the appeal before me. In these circumstances I am prepared to consider, in this appeal, whether to make orders for leave for the plaintiffs to issue, prospectively, a fresh writ against the City confined to any cause of action which arose in or after June 2003.
I direct that the plaintiffs' writ issued 15 January 2007 together with the plaintiffs' chamber summons dated 30 September 2008 stand as an application for leave to commence proceedings prospectively, rather than for retrospective leave in relation to the writ in this action, (as the plaintiffs have expressed, asking the Court to "extend time").
I turn now to consider whether leave should be granted to the plaintiffs to commence proceedings against the City in relation to the events following the dismissal of the neighbours' appeal from the issue of the Section 401 Notice in June 2003.

Factors for determination on an application for leave pursuant to s47A

For the plaintiffs to succeed in obtaining leave to commence proceedings pursuant to s 47A of the Limitation Act 1935 there are three criteria to be addressed:
1.Was the delay in bringing the application occasioned by mistake or by any other reasonable cause?
2.Alternatively, has the defendant been materially prejudiced in its defence or otherwise by the delay?
3.As a matter of discretion, is it just for the Court to grant leave to bring the action?
In this case, there is no explanation for the delay in bringing an application for leave pursuant to s 47A and on the materials I am not satisfied that there was any mistake or other reasonable cause for the delay.
The defendant has, however, conceded in the hearing before me and in written submissions that it has not been materially prejudiced.
As one of the pre-requisites for granting leave has been satisfied, in that the defendant will not be materially prejudiced if leave is given to commence an action before the expiration of six years, I must still consider whether the justice of the case requires leave to be granted to the plaintiffs. To do that I must consider the merits of the plaintiffs' case.
It is not necessary for the plaintiffs to establish a prima facie case of liability and it is enough if it appears that the plaintiffs' claim is not mala fide, speculative or absurd: The Minister for Community Welfare v Bennett, unreported; FCt SCt of WA; Library No 5060; 2 September 1983 per Burt CJ; Victorian Railways Commissioners v Casaccio[1961] VR 157.
On the information before me it cannot be said that the plaintiffs' prospective claim in relation to the failure of the City to ensure that the neighbours complied with the Section 401 Notice is mala fide, speculative or absurd, for the reasons I have already discussed at [53], [54] and [64].
I consider that the interests of justice require that the plaintiffs have leave to bring and litigate any cause of action they may have against the City which is not statute barred.
I therefore allow the plaintiffs' appeal in part, and will allow the plaintiffs' application for leave to institute proceedings against the City, but only in so far as those proceedings relate to any arguable cause or causes of action which the plaintiffs may have arising from the City's acts or omissions relating to the retaining wall following the dismissal, on 4 June 2003, of the neighbours' appeal to the Minister from the City's issue of the Section 401 Notice.

Conclusions

Any cause of action which the plaintiffs have against the City based on events and alleged acts of negligence by the City in failing to check and ensure that the retaining wall was constructed in accordance with the approved plans giving rise to damage which occurred to the plaintiffs' fence or property between 1993 and 2002, or consequential emotional distress to the plaintiffs during the same period, is statute barred. I am unable to "extend time" for the bringing of such a cause of action.
The plaintiffs have an arguable cause of action against the City on the basis of a failure to exercise its statutory powers and enforce the Section 401 Notice after the Minister's dismissal of the neighbour's appeal on 4 June 2003, as I have discussed at [53], [54] and [64] above. That cause of action would not be statute barred, since the six year limitation has not yet expired, although it may soon expire, in June this year.
Pursuant to s 47A of the Limitation Act 1935 I am unable to grant leave retrospectively to the plaintiffs for the writ they issued in January 2007 without leave. I am only able to grant leave to the plaintiffs prospectively, to issue a new writ.
I have granted leave to the plaintiffs to commence proceedings, prospectively, but only for the cause or causes of action which are not statute barred, arising from the City's acts or omissions relating to the retaining wall after 4 June 2003, when the Minister dismissed the neighbours' appeal from the Section 401 Notice. The plaintiffs will need to ensure that a fresh writ is filed as soon as possible, before the six year limitation period expires, and that the claim is properly pleaded. The plaintiffs would benefit from legal advice on this claim and the proper pleading of it.
The fact that I have concluded that the plaintiffs have an arguable cause of action does not mean, and the plaintiffs should not regard it as meaning, that they have a case which will succeed at trial or may survive other challenges which the City may bring in relation to their fresh writ. The City may well be able to establish a defence to the plaintiffs' claim, including that the failure to ensure compliance or enforce the Section 401 Notice does not constitute a breach of any duty owed by the City to the plaintiffs. That is a matter that would need to be determined in that action once all the facts and circumstances of the case are known. Further, if the plaintiffs are ultimately successful, the relief they obtain will not necessarily be what is set out in Mr Kudrin's affidavit, such as the removal of the retaining wall and the installation of a fibro cement fence on the boundary. It will be up to the Court to apply the law to determine the relief, if any, to which the plaintiffs are entitled.
Subject to hearing from the parties I propose to make the following orders:
1.The appeal from the orders of Deputy Registrar Hewitt made 11 February 2009 be allowed.
2.The orders of Deputy Registrar Hewitt made 11 February 2009 be set aside.
3.The plaintiffs have leave to amend the indorsement of claim on the writ in this action by changing the words "And the plaintiff claim" (sic) to read "And the plaintiffs apply" and adding the words "for leave to commence proceedings against the defendant pursuant to s 47A(3) of the Limitation Act 1935 (WA)".
4.The amended writ and the plaintiffs' chamber summons dated 30 September 2008 do stand as an originating application for leave to commence proceedings against the defendant pursuant to s 47A(3) of the Limitation Act 1935 (WA) and service thereof on the defendant be dispensed with.
5.The plaintiffs have leave pursuant to s 47A(3) of the Limitation Act 1935 (WA) to bring an action against the defendant with respect to any cause of action arising from the defendant's acts or omissions relating to the retaining wall built on the boundary of the plaintiffs' property at No 11 Chestnut Rise, Halls Head, Mandurah and No 10 Chestnut Rise, Halls Head Mandurah following the dismissal, on 4 June 2003, by the Minister for Housing and Works of an appeal by Bradley James and Maria Price from a Notice dated 20 February 2003 issued by the defendant pursuant to s 401 of the Local Government (Miscellaneous Provisions) Act 1960.
6.The costs of the plaintiffs' writ in this action, the plaintiffs' chamber summons dated 30 September 2008 and this appeal, including any reserved costs, be costs in the cause of the proposed substantive action.
7.The plaintiffs' application for summary judgment brought by chamber summons dated 3 December 2008 be and hereby is dismissed.
8.The plaintiffs pay the defendant's costs of the plaintiff's application for summary judgment brought by chamber summons dated 3 December 2008, including any reserved costs.
9.The plaintiffs pay the defendant's costs of the defendant's application to strike out the statement of claim brought by chamber summons dated 10 September 2008, including any reserved costs.
10.Except where otherwise ordered, each party do bear their own costs of this action.