McCoy Constructions Pty Ltd v Dabrowski
[2001] QSC 413
•31 October 2001
SUPREME COURT OF QUEENSLAND
CITATION: McCoy Constructions Pty Ltd v Dabrowski [2001] QSC 413
PARTIES: McCOY CONSTRUCTIONS PTY LTD trading as
DAVID McCOY HOMES (ACN 057 812 996)
(Applicant/Plaintiff)
ALEKO DABROWSKI
(Respondent/Defendant) FILE NO/S: Application 60 of 2000
DIVISION: Trial
PROCEEDING: Application
ORIGINATING COURT:
Supreme Court Cairns
DELIVERED ON: 31 October 2001
DELIVERED AT: Cairns
HEARING DATE: 16 July 2001
JUDGE: Jones J
ORDER: 1. The application be dismissed.
2. The applicant pay the respondent’s costs to be assessed on the standard basis.
CATCHWORDS: TORTS – NUISANCE – WHAT CONSTITUTES – whether respondent watched and beset applicant – whether respondent’s conduct significantly hostile and threatening to amount to besetting – whether appropriate cause of action – where suggestion applicant should have pleaded defamation – whether injunction to be upheld – whether need for quia timet injunction in light of respondent’s vindication in Building Tribunal proceeding and subsequent intention to refrain from protesting
Hubbard v Pitt [1976] 1 QB 142, considered
Animal Liberation v Gasser [1991] 1 VR 51, considered Barloworld Coatings (AUST) Pty Ltd v Australian Liquor, Hospitality & Misc. Worker’s Union [2001] NSWSC 826, considered
Dollar Sweets v Federated Confectioners Assoc. [1986] 1 VR
383, considered
Kestrel Coal Pty Ltd v Construction Forestry, Mining and
Energy Union [2001] 1 Qd R 634, considered
COUNSEL: KJ Priestly for the Applicant
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CG Jensen for the Respondent
SOLICITORS: Williams Graham & Carman for the Applicant
Thompson & Royds for the Respondent
Background
[1] The applicant company builds dwelling houses and in the course of its business constructs and exhibits display homes. All the homes on display are owned and built by the applicant.1 Mr David McCoy and Mr Paul Hayes are co-directors of the company.
[2] The respondent is a former customer of the applicant. During 1999/2000,2 the applicant constructed a dwelling house for the respondent in Tully. In relation to this construction, the respondent maintained a grievance primarily concerning the standard of tiling work performed by a subcontractor to the applicant. The parties were unable to resolve their differences and the matter was litigated before the Queensland Building Tribunal.
[3] On 3 April 2000 the respondent spoke to a co-director of the applicant company, Mr McCoy, and threatened that he would sit outside the applicant’s display homes each weekend for the next 12 months.3 He made a similar comment to a carpentry subcontractor, engaged in work for the plaintiff.4 On 9, 15, 16 and 30 April 2000, the applicant positioned himself outside the entrance to the applicant’s display home area at Forest Gardens, a suburb of Cairns. For significant periods on each of those days, he spoke with intending visitors to the homes.5
[4] On 1 May 2000, the applicant instituted proceedings for an interlocutory injunction to restrain the respondent from watching and besetting the applicant at the display village and construction sites. The application was heard on 24 July 2000 and an interlocutory injunction was made in terms that the respondent be restrained from communicating to intending visitors to the display homes or construction sites any comment referring to his business dealings with the applicant.6
1 Transcript 20/8.
2 Affidavit of David McCoy sworn 12 July 2001 at para 2.
3 ibid at para 6.
4 Affidavit of Kim Stuart-Stracey sworn 5 May 2000.
5 Respondent’s Outline of Submissions at p1.
6 McCoy Constructions Pty Ltd v Dabrowski [2000] QSC 385 (26 October 2000).
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[5] In February 2001, the Queensland Building Tribunal found in favour of the respondent in relation to the tiling work dispute but ordered him to pay to the applicant the balance outstanding under their contract.7
[6] The matter is now before me to determine whether a permanent injunction should be ordered. The trial was conducted without pleadings, the issues being identified in the application and affidavits.
[7] Essentially, the application is to restrain “continuing conduct that amounts to the tort of nuisance”. That conduct, the applicant alleges is that the respondent
“watched and beset” the applicant at its display villages and construction sites.8 Mr David McCoy, a co-director of the applicant, expressed concern that if the respondent was not restrained he would continue to “conduct himself in a disruptive manner”9. Further the applicant submitted that the respondent also attended upon construction sites to inquire whether owners were satisfied with the applicant’s standard of work. If they were not satisfied, the respondent attempted to seek their support in his fight against the applicant.10
[8] The respondent argued the applicant’s claim should be dismissed as the respondent has not committed a nuisance and, as he has now been vindicated in the Queensland Building Tribunal, he has no intention or need to resume his protest.11 I shall deal with the claim in nuisance and the quia timet aspects in turn.
The facts
[9] On the dates referred to in paragraph 3 hereof, Mr McCoy and several of his employees, witnessed the respondent approaching and speaking with potential visitors to the applicant’s display homes.12 When challenged, the respondent informed Mr McCoy that he was “performing a public service” in requesting that
7 ibid at para 25.
8 Originating Application filed 19 June 2000.
9 Affidavit of David McCoy sworn 12 July 2001 at para 26.
10 Affidavit of Mr Stuart-Stracey sworn 5 May 2000 at para 6.
11 ibid at page 2 para 4.
12 ibid at para 18. Also note Exhibit 1 (Tape recordings of conversations between respondent and unidentified visitors at unspecified times at unspecified locations), Affidavit of Ashley Hunter sworn 8 May
2000 at para 3, Affidavit of Giuseppina Hunter sworn 5 March 2000 at para 5. Affidavit of Lynore Munro sworn 5 May 2000 at para 6, Affidavit of Jane Westcombe sworn 5 May 2000 at para 5.
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people “check their contracts carefully before building a new home”.13 The respondent also informed potential visitors that he was involved in a dispute with the applicant.14 On certain occasions the respondent used words such as: “I have problems with the construction of McCoy”; “you should take these steps of getting everything written down so you don’t – so you can avoid the problems we had”;
“do this so it’ll save a lot of hassles” and “so that you know you’ll get what you pay for”.15
[10] The respondent claims that on those relevant dates he sat in a chair on the footpath outside the respondent’s display home at the Forest Gardens Display Village and had numerous conversations, which were recorded on audio tape, with intending visitors. The respondent maintains that he said only three things:
(a)He was advising all intending customers proposing to build a home with any builder to take the advice of the Queensland Building Services Authority or their solicitor to ensure that the contract was tightly drawn so that the quality of the house would be as the customer desired;
(b)He had a contract with the applicant and a dispute was currently going before the Queensland Building Tribunal;
(c) He could not go into what the dispute was about.
[11] Mr Jensen of counsel, for the respondent, contended that his client did not disparage, or in any way denigrate the applicant, nor did he warn the public not to build with the applicant or discourage the public from entering the display homes.16
Mr Jensen emphasised that his client gave advice to the public, allegedly in accordance with s 65(2) of the Queensland Building Services Authority Act 1991, which provides that
“(2) If--
(a) a display home is made available for inspection by or on behalf of a building contractor; and
(b) a consumer enters into a contract with the building contractor for the construction of a similar home;
the contract is to be presumed to provide that the home will be constructed according to the same plans and specifications,
13 ibid at para 12.
14 Affidavit of Ashley Hunter sworn 8 May 2000 at para 4, Exhibit 1 generally - transcript 78/37.
15 Exhibit 1 – Transcript 78/37 and 79/5.
16 Respondent’s Ourtline of Submissions at pp1-2.
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standards of work quality and quality of materials as the display home except to the extent (if any) that the contract provides for, and specifically identifies, departures from them”.
This advice, it is argued, was imparted in a reasoned and temperate manner and the respondent never trespassed onto the applicant’s property, obstructed anyone from going there or harassed anyone.17 Counsel for the respondent adopted the analogy of political party representatives approaching voters with “how to vote” cards outside polling booths on election day.18 Further, Mr Jensen acknowledged that his client made it known to members of the public that he was engaged in a dispute with the applicant but submitted that the respondent did not, at any stage, reveal the nature of the dispute. He suggested that any reasonable member of the public would have understood that the nature of the dispute could have been purely contractual and not necessarily one involving allegations of shoddy workmanship.19
The Law
[12] The applicant alleges that the respondent’s conduct constitutes a nuisance. In particular, the applicant pleads that the respondent “watched and beset” the applicant. This points particularly to a class of nuisance which results in the undue interference with the “comfortable and convenient enjoyment of land”. In Clerk & Lindsell On Torts 15 edn at 23-05, the following discussion on point, 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”.
[13] Whether the cause of action is made out, as is indicated from this passage, is ultimately a “question of degree”.
[14] Counsel for the respondent referred me to several authorities, principally Hubbard v Pitt20, Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia,21 Dollar Sweets Pty Ltd v Federated Confectioner Association of
17 ibid at p2.
18 Transcript 32/52, 45/5.
19 Respondent’s Outline of Submissions at p2.
20 [1976] 1 QB 142
21 (1971) 1 NSWLR 760
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Australia22 and Animal Liberation (Vic) Inc v Gasser23 in submitting that nuisance, constituted by watching and besetting, is not established on the material before the Court.
[15] The term besetting was considered by Murphy J in the Dollar Sweets case at 388-
389 as follows:
“Besetting is appropriately a term applied to the occupation of a roadway or passageway through which persons wish to travel, so as to cause those persons to hesitate through fear to proceed or if they do proceed to do so only with fear for their safety or the safety of their property”.
In that case, the plaintiff, a confectionery manufacturer and distributor, sought an interlocutory injunction against the defendant, a union group who assisted some 15 employees to form and enforce a picket outside the plaintiff’s factory. Murphy J was satisfied that,
“the acts of all the defendants which have now been repeatedly performed over many months cannot be considered to be a lawful form of picketing, but amount to a nuisance involving, as they do, obstruction, harrassment and besetting … the latter meaning, in this context, to set about or surround with hostile intent”.
[16] In Animal Liberation (Vic) Inc and Another v Gasser and Another the appellants, an incorporated association and its vice president, were opposed to the use of performing animals, especially exotic and wild animals, in circuses and demonstrated outside the respondents’ circus in order to dissuade members of the public from attending performances. The Court at first instance heard evidence that,
“the appellants and other demonstrators sought to deter persons from attending the circus by subjecting the persons present, including elderly people escorting young children, to intimidation constituted by accusations (some by placard and some shouted) which carried the implications that the persons attending the circus should be ashamed of themselves for attending, and for escorting their children to the circus, and which were calculated to put the children and their escorts in fear”.24
[17] The Court25 considered besetting as,
22 [1986] VR 383
23 (1991) 1 VR 44
24 Summarised in Appeal Court headnote [1991] 1 VR 51 at p51
25 Crockett, Fullagar and Nathan JJ
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“only one of the ingredients that may make a picketing into a nuisance, and that … [it] may include, for example, lining up so as to compel would- be patrons to “walk the gauntlet” of shouting picketers, so as to cause such patrons to hesitate through fear to proceed or, if they do proceed, to do so only with fear for their safety or fear of harmful effects upon the accompanying children. A besetting includes a surrounding with hostile demeanour so as to put in fear of safety”.26
[18] Their Honours then went on to compare that language with that of Murphy J in the Dollar Sweets case. They referred to p390 where his Honour found that, “the defendants [in that case] had committed torts of “intimidations”” and commented that “what may be required to intimidate a grandmother and young children accompanying her may be much less than might be required in order to deter or intimidate, for example, a healthy male truck driver”. This reflects the passage in Clerk & Lindsell that nuisance is ultimately, a “question of degree” and thus each case must be considered in light of its own, particular circumstances.
[19] Their Honours concluded in Gasser that the evidence and findings justified interlocutory injunctions.
[20] These authorities and the scope of an action in nuisance were considered most recently in the decision of Barloworld Coatings (AUST) Pty Ltd v Australian Liquor, Hospitality & Misc. Worker’s Union.27 There, the plaintiff sought an interlocutory injunction restraining the defendant from picketing in a way that would obstruct or hinder or interfere with the passage of any person to or from the plaintiff’s factory premises. Justice Bryson of the New South Wales Supreme Court considered at what point picketing becomes tortious. He examined the distinction between obstruction and besetting as follows:
“Much behaviour which is ordinarily called picketing is not tortious at all. A great deal depends on detail, and generalisations are of limited use, but for persons to assemble outside a workplace and make known to others including people going to and leaving the workplace the fact that there is an industrial dispute and so forth is not unlawful or tortious; yet much the same behaviour would be tortious if in doing it they obstructed the passage of other persons, whether with vehicles or on foot. Obstruction could take many forms, such as standing in their way, or moving about in some way which interfered with passage. The evidence in this case shows a number of very clear instances of obstruction, including
26 ibid at p58
27 [2001] NSWSC 826
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sitting and standing in the driveway, imposing the need on others to move around and avoid picketers, when there was no occasion for the behaviour but to impede passage.
… “Besetting” is a much less definite concept than “obstruction”. Behaviour can constitute a nuisance to an occupier if the occupier or other persons attending the occupier’s presence are watched continually or beset with insults or messages in ways or circumstances which offer discouragement to attendance there and so impede the occupier’s enjoyment of his property. When observing behaviour it would usually be easy to distinguish between making a point of view known by addressing other persons and discouraging the passage of persons by besetting them with insults, offensive language and threats, while it also shows that a number of persons have been subjected to insults which reasonable people would find very discouraging and would tend to avoid”.
[21] The Court in Barloworld also examined the language used in order to determine whether the behaviour constituted besetting. The evidence revealed that the word
“scab” had been used very freely. Referring to a person who continues working during a strike, the term was found to be clearly and strongly an insult and some plaintiffs attested to being intimidated by it. Justice Bryson felt that the evidence about persons having a sense of intimidation was not of much value - the expression not saying anything clearly about the feelings of the person involved - and believed the better approach was for the Court to appraise the situation and the language used.28
The Law applied to the Facts
[22] It is clear that the respondent told members of the public of his dispute with the applicant and physically obstructed intending visitors to the display homes, in so far as they would have to go out of their way to avoid being approached by him. Such obstruction could only be considered as being of a minor impact and it does not appear to have given rise to any concern to the visitors. The respondent did not appear to be hostile towards visitors, use offensive language, intimidate or in anyway utter threats or instil fear, the usual elements of besetting as discussed in relevant authorities above.
28 [2001] NSWSC 826 at para 18.
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[23] However, in advising people of his dispute with the applicant and in making people aware of the function of the QBSA, and even going so far as to use statements such as, “I have problems with the construction of McCoy”; “you should take these steps of getting everything written down so you don’t – so you can avoid the problems we had”; “do this so it’ll save a lot of hassles” and “so that you know you’ll get what you pay for,”29 he intended to harm the applicant’s business. Despite his protestations of acting in the public interest I have no doubt that self interest was the motivating force. I saw the respondent’s actions as an attempt to embarrass the applicant or an attempt to pressure it to settle the respondent’s claim on his terms. It is regrettable that when peaceful means for dispute resolution were available, the respondent chose to adopt a confrontational approach as well.
[24] However, the respondent’s conduct does not, in my mind, constitute “watching and besetting” as defined in the abovementioned authorities. I am bound to consider the cause of action pleaded by the applicant. Whilst the respondent’s conduct was no doubt annoying and potentially disruptive to the applicant, commercially, he did not
“watch and beset” intending visitors. It does not appear from the evidence before me that any of the visitors approached by the respondent suffered either emotionally or physically as a result of their interaction with him. Further, the extent to which the respondent may have caused a decrease in sales for the applicant, as a result of his actions during those four days in April 2000, is difficult, if not impossible, to quantify. In any event, I suspect the effect would have been minimal. There is no evidence from any visitors who were in fact dissuaded from dealing with the applicant directly as a result of the respondent’s actions.
[25] The applicant has not made out any case of an actionable wrong, nor identified conduct which ought to be restrained.
The quia timet element
[26] I should comment upon a further matter raised by the respondent. The respondent maintains that he has no intention of continuing his protest. In his most recent affidavit, he asserts as follows:
29 Exhibit 1 – Transcript 78/37 and 79/5.
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“I do not presently intend to go out to the display village at Forrest Gardens, however, I do not see that the Applicant has any right to restrict my movements and deny me what I consider is my basic right in a free country, to do as I wish within the limits of the law”.30
[27] It is on this basis that counsel for the respondent argues that there is simply no basis to grant a permanent injunction even if it were thought that the respondent had committed a nuisance in the past. Counsel for the respondent drew my attention to the recent decision of Mr Justice Chesterman in Kestrel Coal Pty Ltd v Construction Forestry, Mining and Energy Union31. This was a case of industrial bullying with union protestors blocking the roadway, harassing, swearing at and vilifying employees trying to go to work at a mine. An interim injunction had been granted but prior to the trial, the industrial campaign ended and the defendants no longer had any motivation to protest. At the same time, however, they refused to give a complete assurance that they would not reactivate the protest at some time in the future. In these circumstances, Chesterman J had to weigh up whether there was sufficient risk of the conduct re-occurring which would warrant ordering a quia timet injunction. He found that there were sufficient grounds for ordering the injunction and considered such factors as the likelihood of the conduct occurring, the damage the plaintiff would suffer if it did occur and the hardship or inconvenience the defendant will suffer if the injunction is granted.
[28] The respondent’s behaviour here was on a vastly different scale to that of the picketers in Kestrel. Moreover, the impact on the mining operations and on those who depended upon the operations made the consequences of repetition of conduct quite serious. I am not satisfied that the respondent would continue to protest, given the ruling of the Queensland Building Tribunal in his favour and his indication at trial that he intends to get on with his life and put this behind him.32 I find there are no sufficient grounds to warrant ordering an injunction and would therefore, dismiss the application.
30 Affidavit of Alex Dabrowski sworn on unspecified date, July 2001, filed 11 July 2001 at para 3 also note discussion at transcript 73/45
31 [2001] 1 Qd R 634
32 Transcript 74/6-7
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Orders
[29] 1. The application be dismissed.
2.The applicant pay the respondent’s costs to be assessed on the standard basis.
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