McCoy Constructions Pty Ltd v Aleko Dabrowski

[2000] QSC 385

SUPREME COURT OF QUEENSLAND

CITATION:

McCoy Constructions Pty Ltd  v Aleko Dabrowski  [2000] QSC 385

PARTIES:

McCOY CONSTRUCTIONS PTY LTD Trading as
DAVID McCOY HOMES (ACN 057 812 996)
(Applicant / Plaintiff)
v
ALEKO DABROWSKI
(Respondent / Defendant)

FILE NO/S:

No 60 of 2000

DIVISION:

Trial

PROCEEDING:

Civil Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

26 October 2000

DELIVERED AT:

Cairns

HEARING DATE:

24 July 2000

JUDGE:

Jones J

ORDER:

1.   Until the final determination of these proceedings, the defendant, by himself and his agents, be restrained from communicating, directly or indirectly, to intending visitors to the plaintiff’s display homes or construction sites any comment referring to his business dealing with the plaintiff.

2.   The parties given liberty to apply.

3.   The costs of and incidental to this application are reserved.

CATCHWORDS:

INJUNCTIONS - INTERLOCUTORY - application to restrain defendant from watching and besetting the plaintiff at  plaintiff’s display homes and construction sites - dispute currently before Building Tribunal - whether defendant’s conduct constitutes nuisance - balance of convenience  - terminology of appropriate interlocutory injunction

COUNSEL:

Mr K. Priestly for the plaintiff / applicant
Dr C. Jensen for the defendant / respondent

SOLICITORS:

Williams Graham & Carman for the plaintiff / applicant
Thompson & Royds for the defendant / respondent

1. JONES J:  This is an application by the plaintiff for an interlocutory injunction to restrain the defendant from watching and besetting the plaintiff at the premises of the plaintiff’s display homes and construction sites in the Cairns area. 

1. The plaintiff company is a builder of dwellings, some of which, in the course of its business, it displays to members of the public.  The principal of the plaintiff company is Mr. David McCoy.

1. The plaintiff and a number of other builders exhibit display homes in an area known as Forest Gardens, Cairns. As a consequence, a large number of visitors are attracted to this area, particularly at weekends. 

1. The defendant is a former customer of the plaintiff company which constructed for him a dwelling house in the township of Tully.  The defendant maintains a grievance about the standard of the tiling work which was carried out by a subcontractor to the plaintiff. Despite discussions, the parties have been unable to resolve their differences in respect of this construction work and the matter is currently the subject of litigation before the Building Tribunal.

1. On 3 April, 2000 following the failure of discussions to resolve the conflict between the parties, the defendant issued a threat that he would sit outside the plaintiff’s display homes each weekend for the next 12 months.  It is alleged that that threat was repeated to a Mr. Stuart-Stacey, a subcontractor to the plaintiff, at one of the plaintiff’s work sites.

1. On the following Sunday, 9 April, 2000, the defendant positioned himself on the footpath at the entrance to the display home area at Forest Gardens and spoke to intending visitors to those homes.  He was there between 10.00 am and 5.30 pm that day. 

1. He again so positioned himself in the display home area on 15, 16 and 30 April, 2000 for significant periods on each of those days.

1. On 1 May, 2000 these proceedings were instituted. At various adjournments since then and for the period since the hearing of arguments, the defendant has undertaken not to continue this activity until the determination of this application.

1. At various times on 9, 15 and 30 April, 2000, comments which passed between the defendant and persons he believed were intending to visit the plaintiff’s display homes were captured on an audio tape recording.  In each case the defendant identified that he had a contract with the plaintiff company for the construction of his dwelling house and that there was a dispute which was currently awaiting determination before the Building Tribunal.  He then followed this information with gratuitous advice to the visitors to be careful with the terms of any building contract they entered into.  The defendant claims that he never warned anyone not to build with the plaintiff nor did he speak to visitors about the substance of his dispute with the plaintiff.  Some comments from visitors indicated they inferred that there was a criticism of the plaintiff’s workmanship. There is also dispute as to the terms of unrecorded conversation between the defendant and certain employees of the plaintiff company.  These factual issues need not, and indeed should not, be canvassed in detail at this stage.

1. The plaintiff alleges that this conduct on the part of the defendant constitutes a nuisance.  It points particularly to that type of nuisance which results in the undue interference with the “comfortable and convenient enjoyment of land”.  Discussion of this type of nuisance and examples of it are set out in Clerk & Lindsell On Torts 15 edn at 23-01.  In paragraph 23-05 the following passage appears:-

“In nuisance of the third kind, “the personal inconvenience and interference with one’s enjoyment, one’s quiet, one’s personal freedom, anything that discomposes or injuriously affects the senses or nerves,”  there is no absolute standard to be applied.  It is always a question of degree whether the interference with comfort or convenience is sufficiently serious to constitute a nuisance.”

1. On behalf of the defendant it is alleged that he has not defamed the plaintiff, has not trespassed on the plaintiff’s property, has not performed any illegal act or any act which could be considered intimidatory.  The defendant further argues that the nuisance constituted by besetting and watching the plaintiff’s premises is not established on the material before the Court.  Reliance was made upon various remarks in Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1], Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [2] and Animal Liberation ( Vic) Inc v Gasser[3]. 

   [1](1986) VR 383,

   [2](1971) 1 NSWLR 760

   [3](1991) 1 VR 44

1. The broad outline of the conflict and the question of whether the conduct of the defendant constitutes a nuisance has to be looked at only for the purpose of determining whether there exists between the parties a serious question to be tried for the purpose of this application.  The relevant test is compendiously stated in the judgment of Gibbs CJ in Australia Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland[4] in the following terms:-

“It seems to me, notwithstanding what was said in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968), 118 CLR 618, that the proper approach, in considering whether an interlocutory injunction should be granted, is first to enquire whether there is a serious question to be tried, and then to determine the matter on the balance of convenience.”

[4](1982) 57 ALJR 425

1. Without canvassing the helpful arguments of both counsel, my consideration of all the facts and the authorities to which I have been referred convinces me that there is a serious question to be tried.  The cause of action is not a common one and, as is indicated from the passage quoted from Clerk & Lindsell, is ultimately a “question of degree”.  Despite suggestions made on behalf of the defendant that he was simply giving helpful advice to would-be  home purchasers it is possible to draw the inference of an intention to denigrate the plaintiff’s business or business practices.  These questions can only be determined in the context of a full hearing.

1. The second point for determination is whether, in consideration of the balance of convenience for the parties, the interlocutory injunction ought to be imposed.

1. In the circumstances of this case there is an obvious potential for the plaintiff to lose custom by reason of plaintiffs being informed of an earlier customer’s happiness with the outcome of his contract with the plaintiff company.  Against that the defendant does not show that he suffers any loss were he to be restrained from speaking to intending visitors at the display homes.  On the defendant’s behalf it is argued that his personal liberties should not be constrained or restricted in the circumstances put forward on behalf of the plaintiff and that his right to peaceful protest would be stopped.  It is one of the features of nuisance claims that a nuisance can occur notwithstanding that the conduct complained of is not unlawful.  Such conduct may become a nuisance when the circumstances of lawful acts extend to the land of a neighbour so as to unduly interfere with the neighbour’s comfort and enjoyment of the land.  The defendant’s right to use the roadways and footpaths should not be restricted but he suffers no loss or inconvenience by being restricted in his approach to intending visitors to the plaintiff’s display homes.  In my view the balance of convenience clearly favours the granting on an injunction.

1. The next question is how to so frame a restriction on the defendant’s movement and conduct which is sufficiently certain for him to be able to comply with its terms and if necessary for a judgment to be made if the terms have been breached.  This problem was referred to by McPherson J (as he then was) in Commissioner of Water Resources v Federated Engine Drivers’ Association[5] when at first instance an order was made against certain persons that they be restrained from procuring a breach of contract by refusing to work at a dam construction site.  At p.390 His Honour said:-

“In its present form the injunction...restrains the respondents from procuring a breach by the company of its contract with the applicant.  In order to comply with the injunction, it would in consequence be necessary for the respondents to refer to the terms of the contract, which is not in their possession, and no doubt also to take legal advice, in order to determine whether, by refusing to work in accordance with their own contracts of employment, they were procuring a breach of the company’s contract with the applicant.  That is quite contrary to another well settled rule governing injunctions, which is that the order should be so expressed that the person to whom it is directed should be able, by reading it and without more, at once to know what it is that he must do, or refrain from doing, in order to comply with its terms.”

[5](1988) 2 QdR 385

1. For this reason I am reluctant to use the terms “watching and besetting” which have been used in the undertaking to date.  The terms are not in common usage and a determination whether conduct constitutes ‘watching and besetting’ is a matter in respect of which opinions may differ.  The terms as defined by Lindley MR in J. Lyons & Sons v Wilkins[6] illustrate the difficulty, His Lordship said (at pp.267-8):-

“The truth is that to watch or beset a man’s house with a view to openly compel him to do or not to do what is lawful for him not to do or do is wrongful and without lawful authority unless some reasonable justification for it is consistent with the evidence.  Such conduct seriously interferes with the ordinary comfort of human existence and ordinary enjoyment of the house beset, and such conduct would support an action on the case for a nuisance at common law ... Proof that the nuisance was ‘peaceably to persuade other people’ would afford no defence to such an action.  Persons may be peaceably persuaded provided the method employed to persuade is not a nuisance to other people.”

[6](1891) 1 Ch 255

1. It would, in my view, be very hard to determine whether a restraint couched in those terms would define the conduct which could not be engaged in without breaching the order.

1. The matter of terminology was canvassed by counsel during the course of argument without leading to a submission as to the appropriate wording of the restraint.  I perceive the plaintiff’s position to be that the essential conduct to be restrained is the communication to intending visitors of a complaint of bad workmanship by the plaintiff, or of facts from which such an inference could reasonably be drawn.  The defendant argued that the difficulty in framing the terms of a restraint underlined the “fragility and silliness” of the application, and further that damages would, in any event, be an adequate remedy.

1. As indicated, I have taken the view that an interlocutory injunction ought be ordered.  Its terms should however restrict the defendant’s right of movement in public areas and not inhibit his right of lawful freedom of speech.  The restriction is intended to prevent conduct which is likely to constitute a nuisance in a sense identified in these reasons.

1. This purpose can be achieved I believe by the terms of the orders which I now make –

1. Until the final determination of these proceedings, the defendant, by himself and his agents, be restrained from communicating, directly or indirectly, to intending visitors to the plaintiff’s display homes or construction sites any comment referring to his business dealing with the plaintiff.

1. I give to the parties liberty to apply. 

1. Costs of and incidental to this application will be reserved.