McDonald v Fosterville Gold Mine Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST

S ECI 2023 03819

BETWEEN:

KIRSTY MAREE MCDONALD & ANOR (according to the attached Schedule)	Plaintiffs
v
FOSTERVILLE GOLD MINE PTY LTD (ACN 010 604 878)	Defendant

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	29 July 2024, 25 November 2024
DATE OF JUDGMENT:	10 January 2025
CASE MAY BE CITED AS:	McDonald v Fosterville Gold Mine Pty Ltd
MEDIUM NEUTRAL CITATION:	[2025] VSC 1 (Revised 20 January 2025)

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TORTS — Nuisance — Low frequency noise from mining operations allegedly causing substantial and unreasonable interference with plaintiffs’ use and enjoyment of residential property — Plaintiffs alleging physical and psychological harm, including sleep disturbance, headaches, nausea, and depression — Dispute between experts about whether an assessment of subjective impacts and noise characteristics required — Whether defendant’s expert evidence conclusively supports a finding that plaintiffs’ claims have no real prospects of success — Case permitted to proceed to trial.

CIVIL PROCEDURE — Summary judgment — Application under s 62 of the Civil Procedure Act 2010 (Vic) — Defendant contended plaintiffs’ claims had ‘no real prospect of success’ — Court emphasised caution in dismissing claims involving complex factual and technical disputes — Expert disagreement on noise assessment methodologies warrants a trial — Plaintiffs raised sufficient triable issues on causation and nuisance — Trial required to resolve disputes between experts regarding relevance of characteristics of noise — Further investigation needed to determine source of noise — Methodological disputes unsuitable for summary resolution — Campaspe Investments Pty Ltd v PBP Accounting Solutions Pty Ltd [2015] VSC 26, distinguished — Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 and Uren v Bald Hill Wind Farm Pty Ltd [2022] VSC 145, considered — Summary judgment refused — Spencer v Commonwealth (2010) 241 CLR 118, Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27, and Yin v Wu (2023) 73 VR 21, referred to.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Dr M Sharpe of counsel	DST Legal
For the Defendant	Mr M Scott KC with Ms E Levine of counsel	White & Case

HER HONOUR:

Introduction and background

This proceeding concerns a claim of nuisance made by the owners and residents of a property in Axedale, near Bendigo (‘property’). The plaintiffs, Ms Kirsty McDonald and Ms Karen Oliver, allege that the gold mining operations of the defendant, Fosterville Gold Mine Pty Ltd, which are located some three kilometres from the property, have generated excessive noise since about June 2020.[1]
[1]The ‘noise’ is defined in paragraph 4 of the statement of claim as ‘low frequency sound, infrasound or vibration…perceived by each plaintiff as a droning humming noise and/or vibration.

In their statement of claim filed on 23 August 2023, the plaintiffs claim that the noise has caused a substantial interference to the plaintiffs’ use and enjoyment of the property, providing the following particulars:

A.The Noise from the Fosterville Gold Mine prevents the plaintiffs from falling asleep, awakes them during the night making them feel fatigued and exhausted during the day;
B.The Noise is distressing and debilitating: it creates a physical response in the plaintiffs including headaches, nausea, ear pain, heart palpitations, and body vibration;
C.The Noise has prevented the plaintiffs from using certain rooms in their house, especially the main bedroom;

D. The Noise makes the plaintiffs feel irritated, distressed and depressed;
E.The Noise causes the plaintiffs to open their windows and doors to their house including during winter and cold weather to provide relief from the effects of the Noise built-up inside their house;
F.The Noise has prevented the plaintiffs from hosting visitors, family, and friends at their house;
G.The Noise forces the plaintiffs to leave their house regularly to seek respite, with the plaintiffs sleeping in their car and/or campervan and/or staying overnight with family and friends when impacted at nighttime.

The plaintiffs claim that they have grounds for an injunction to abate further nuisance, and also claim aggravated and exemplary damages by reason of the defendant’s failure to reduce noise emissions from its operations in response to various notices issued by the Environment Protection Authority (‘EPA’) in 2021 and 2022 (‘EPA notices’).[2]
[2]From late November 2021 the EPA issued a number of notices directing the defendant to carry out investigations into noise emissions from its operations, along with notices imposing prohibitions on some of its operations, and notices requiring improvements to its plant and equipment. The EPA notices were withdrawn in 2023.

In its defence filed on 17 October 2023, the defendant, in relation to the allegation in the statement of claim that its operations have almost continually emitted noise perceived by the plaintiffs at the property, said as follows:

Save that it does not know and therefore cannot admit what noise, including low frequency sound, infrasound or vibration (if any) is subjectively perceived by either of the plaintiffs at the Property, it denies the allegations in paragraph 4 and says further that:
a.the noise levels measured at the Property in around May 2021, when the plaintiffs gave FGM access to the Property for the purpose of taking measurements, were typical of a quiet rural environment;
b.low frequency noise was not a notable component of the noise measured at the Property;
c.noise levels at the Property were below the thresholds described in the EPA Victoria 1996 publication entitled “Noise guidelines: assessing low frequency noise” dated June 2021;
d.the spectra of the noise measured at the Property did not correlate well with any of the airborne noise measurements taken within MIN5404, indicating that the noise environment at the Property is not strongly influenced by the operation of the Fosterville Gold Mine;
…
e.the noise levels measured at the Property are unlikely to cause any adverse health effects in most people; and
f.even if the plaintiffs have, at any relevant time, perceived any low frequency sound, infrasound or vibration at the Property (which is not admitted), then this is not due to any unreasonable noise caused by FGM.

The defendant said further that any noise emitted by its operations is not unreasonable, as at all material times its operations were carried out in accordance with the terms of the permits and approvals granted by the relevant regulatory authorities.

The defendant’s application and the hearing on 25 July 2024

On 15 May 2024, the defendant made an application for summary judgment pursuant to s 62 of the Civil Procedure Act 2010 (Vic) (‘CPA’) and/or a stay of the proceeding pursuant to r 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’) (‘summary judgment application’) on the basis that the plaintiffs’ claims in this proceeding have no real prospect of success and/or are an abuse of process.[3]
[3]However, it is not necessary to consider the latter application in any detail: if the plaintiffs’ claims in this proceeding have real prospects of success, the claims cannot be frivolous or vexatious, and this proceeding cannot be an abuse of process. The applications rise and fall together.

The defendant contends that the only objective data available to the parties, being records of noise testing carried out at the property by the plaintiffs themselves between 2021 and 2023, and testing in accordance with an agreed protocol in September 2024 shows that levels of low frequency noise at the property did not exceed the recommended thresholds in guidelines issued by the EPA[4] (‘EPA guidelines’). As low frequency noise levels below the threshold in the EPA guidelines are three standard deviations below the mean human hearing threshold,[5] the plaintiffs have no real prospect of establishing, by objective evidence, that the defendant’s operations have emitted audible noise as defined in the statement of claim.
[4]Environment Protection Authority Victoria, Noise Guidelines: Assessing Low Frequency Noise (Publication No 1996, June 2021).
[5]Such that, assuming a normal distribution, the noise would only be audible to 0.15 percent of the population.

The defendant relied upon a number of reports prepared by an acoustic engineer, Mr Tom Evans (‘Evans reports’). Mr Evans prepared a series of reports, some of which were prepared in response to criticisms made by the plaintiffs to the effect that in his first report, Mr Evans had failed to consider other reports into noise levels prepared prior to the commencement of this proceeding, and the EPA notices.

Prior to the preparation of his first report on 1 May 2024, Mr Evans was provided with the following documents:

(a) noise measurement octave reports summarising testing conducted by the plaintiffs in the period between 11 December 2021 and 27 February 2023 and produced by the plaintiffs during the course of the discovery process; and

(b) a draft report prepared for the plaintiffs by Audiometric & Acoustic Services dated 21 June 2021 regarding measurements taken between 14 May 2021 and 21 May 2021, and the underlying acoustic data collected for the purpose of preparing this report.

On 7 May 2024, Mr Evans reviewed some further acoustic reports produced by the defendants upon discovery, and prepared a supplementary report in which he opined that the further data provided also showed that the noise levels at the property did not exceed the threshold levels in the EPA guidelines, and therefore did not cause him to alter the opinions recorded in his first report.

In her affidavit of 9 May 2024, the defendant’s solicitor, Ms Lee Carroll, accurately summarised the conclusions in Mr Evans’ first report as follows:

In summary, the Evans Report concludes that the Plaintiffs’ evidence (both the Plaintiffs’ Noise Evidence and the Plaintiffs’ Further Noise Evidence) does not establish low frequency noise at the Property that exceeds the threshold levels in the EPA Guidelines. Mr Evans concludes in his Report that:
(a)the Plaintiffs’ noise evidence demonstrates that noise levels at the Property are well below the low frequency noise thresholds in the EPA Guidelines;
(b)the Plaintiffs’ noise evidence does not indicate the source of the measured noise levels at the Property; and
(c)the thresholds contained within the EPA Guidelines are set below the mean human hearing threshold (indicating that it is unusual that individuals would hear noise levels consistent with the threshold or noise levels measured well below the thresholds).

In her affidavit, Ms Carroll also deposed that the plaintiffs’ solicitors have confirmed that the plaintiffs had no further acoustic data or expert reports in their possession.

Ms Carroll deposed further as follows:

The Defendant has incurred significant costs in defending the Proceeding to date.
To date, the Defendant has incurred $2,098,937.18 (excl GST). This amount represents:
(a)professional fees of $1,775,996.00 for activities including review and preparation of pleadings, strategic advices, various interlocutory disputes, completion of discovery and preparation of this Application; and
(b)disbursements (including Counsel fees) of $322,941.18.

Further, and based on my experience in practice, I estimate that the Defendant will incur a further $1,000,000 defending the Proceeding up to and including trial.

The plaintiffs did not file and serve any expert evidence in response to the Evans reports. Rather, they relied upon two affidavits sworn by their solicitor, Ms Dominica Tannock, in opposition to the summary judgment application. In her first affidavit sworn on 17 July 2024, Ms Tannock commented upon, among other things, the documents provided to Mr Evans for the purposes of preparing the Evans reports, and said that she had been instructed by the plaintiffs that Mr Evans had not conducted any testing at the property, and had not made any enquiries of them regarding their perceptions of the noise said to emanate from the defendant’s operations.

Ms Tannock also exhibited and commented upon various reports and other documents discovered by the parties, including noise diaries kept by the plaintiffs prior to the commencement of this proceeding and reports of various investigations carried out by the defendant and the EPA during the course of 2021 and 2022, along with the EPA notices.

Following the receipt of Ms Tannock’s affidavit of 17 July 2024, the defendant’s solicitors provided to Mr Evans the documents referred to in Ms Tannock’s affidavit, along with the written submissions filed on behalf of the plaintiffs in opposition to the summary judgment application. In a further report dated 24 July 2024, Mr Evans:

(a) confirmed that he had reviewed two noise monitoring reports prepared for the defendant prior to the issue of this proceeding, and had provided his opinion regarding those reports in his first report; and

(b) said that he reviewed the EPA notices, but said that the EPA notices did not alter his conclusions, stating as follows:

From my review of the EPA notices, I make the following observations:
•At no point do the EPA notices make reference to noise levels at the Plaintiffs’ property. Rather they refer to low frequency noise ‘within, and beyond the boundaries of FGM. The Plaintiffs’ property is located much further south of the site than the boundary and nearest receivers to the site, such that it does not follow that the EPA commentary around the boundaries of FGM applies to the Plaintiffs’ property.
•The EPA notices do not quantify the magnitude of low frequency noise rather only the frequencies at which low frequency noise was identified. The EPA notices also do not provide any comparison of noise levels to the EPA Low Frequency Noise Guidelines.

Considering the above, no conclusions can be drawn from the EPA notices with respect to low frequency noise levels at the Plaintiffs property. While they were not directly relevant to the questions I was asked, I confirm that they were considered and did not change the conclusion I provided in the Evans Report that none of the documents establish low frequency noise levels at the Plaintiffs’ Property in excess of the EPA Low Frequency Noise guidelines thresholds.

At the first return of the summary judgment application on 29 July 2024, the defendant relied upon the opinions in Mr Evans’ first two reports in support of the following submission:

FGM has obtained an independent expert opinion which has examined all the objective acoustic material identified by the Plaintiffs as constituting the basis of their claim. That uncontradicted evidence establishes three things.
First, noise levels at the Property are well below the low frequency noise thresholds in the applicable Environment Protection Authority (EPA) Guidelines.
Secondly, the EPA Guidelines thresholds are themselves below the mean human hearing threshold.
Thirdly, the material identified by the Plaintiffs does not indicate the source of any measured noise levels at the Property in any event.
The short point is that the critical foundation of the claim lacks any demonstrable basis whatsoever. It is apparent that there was no proper objective basis for bringing this proceeding against FGM, it has no reasonable prospects of success and it is an abuse of process to continue it.

The defendant submitted further as follows:

Mr Evans’ expert opinion establishes with clarity that there is simply no objective basis for the Plaintiffs to plead that since about June 2020 there was low frequency noise emitted from the mine at levels that caused any substantial interference with their use and enjoyment of the Property. The noise measurement reports and data that the Plaintiffs have discovered (which must be taken to be exhaustive on noise measurement) show that the opposite is the case. The fact is that noise levels at the Property were well below the low frequency noise thresholds in the EPA Guidelines. And those materials do not establish any nexus between the noise levels measured at the Property and the mine.
Nor do these materials disclose any real prospect that the measured noise levels were even within the range of ordinary human perception, let alone have caused any substantial and unreasonable interference with the use and enjoyment of the Property.
The Plaintiffs’ discovered noise materials are the only materials on which the Plaintiffs can conceivably rely to substantiate their historical nuisance claim. They cannot now obtain new measurements which would substantiate a claim of past nuisance. Given Mr Evans’ opinion as to what the discovered noise materials do not establish, the historical nuisance claim lacks any evidentiary foundation and is therefore unsustainable, baseless and should not have been brought.
As to the current state of affairs, the Statement of Claim does not differentiate between historical and ongoing noise. It follows that if the allegation of historical noise lacks any foundation then the claim for ongoing nuisance must likewise be baseless.

In their written submissions filed on 17 July 2024, the plaintiffs referred to the EPA guidelines, and in particular the following observations and qualifications, which they said were not addressed in the Evans reports (omitting footnotes):

First, the EPA Guidelines set out the method by which noise is to be measured and warn that measurement “should only be conducted or supervised by someone suitably qualified and experienced in noise assessments and measurements”, the EPA Guidelines state that the “The human range of hearing is often described as being from 20 Hz to 20,000 Hz (20kHz). However, low frequency sound at frequencies less than 20 Hz can be audible”.
Second, the EPA Guidelines state that the “The human range of hearing is often described as being from 20 Hz to 20,000 Hz (20kHz). However, low frequency sound at frequencies less than 20 Hz can be audible”.
Third, and most important of all, the EPA Guidelines provide the following qualification to the thresholds set out in the guideline:
The threshold levels are not set limits. Rather, they are levels that indicate a potential risk of problematic low frequency noise. The disturbance from low frequency depends on the:
•noise level
•characteristics that can increase annoyance with the noise, for example, tonality, frequency modulation
•baseline noise levels in the absence of noise concern

The plaintiffs also noted that the defendant has discovered some 35,000 documents, and that the parties’ nominated experts had agreed a protocol for the testing of noise at the property. The plaintiffs referred to the complaints made by the plaintiffs and others regarding the defendant’s operations, and the issue of the EPA notices.

The plaintiffs made the following observations regarding the Evans reports:

(a) the noise measurements relied upon by Mr Evans were made by the plaintiffs themselves, who do not hold suitable qualifications to undertake noise testing; and

(b) whether or not the noise levels at the property fall above or below the thresholds in the EPA guidelines is not determinative of whether the noise constitutes a common law nuisance.

Following the hearing on 29 July 2024, I delivered a ruling on 7 August 2024 (‘first ruling’) where I stated, among other things, as follows:

FGM has made out a solid prima facie case that it is entitled to summary judgment, based upon the reports of Mr Tom Evans dated 1 May 2024, 7 May 2024, and 24 July 2024 (‘Evans report’), which concluded that there is no evidence of any audible low frequency noise at the property. Contrary to the submissions of the plaintiffs, in the absence of any expert evidence in rebuttal, and in the absence of any evidence which raises any real doubts about the independence of Mr Evans, it would be open to the Court to find that the plaintiffs have no real prospects of success in establishing their claims in this proceeding.

I accept that while non-compliance with the guidelines set by the Environment Protection Authority (‘EPA’) does not, of itself, establish that there was no nuisance at the relevant times, Mr Evans has explained the relationship between the EPA guidelines and the accepted scientific position regarding audible low frequency noise. That is, the EPA guidelines are, in effect, an acceptable yardstick for the purpose of determining whether noise emissions are audible. Again, Mr Evans’ conclusions in that regard are not rebutted by expert evidence.
The plaintiffs submitted that I should not grant summary judgment based upon the Evans report, as the Evans report was based upon limited and potentially unreliable data, and the Evans report was procured in curious and troubling circumstances. However, I can only give limited, if any, weight to criticisms of the analysis and conclusions in the Evans report made by the plaintiffs’ legal team. The position may have been different had the Evans report been subject to critical analysis and evidence from an appropriately qualified expert.
The plaintiffs submitted that the data relied upon by Mr Evans, being the measurements taken by the plaintiffs themselves, is not the only evidence which will be relied upon by the plaintiffs at trial. The plaintiffs submitted that FGM has overlooked the following categories of documents discovered by the plaintiffs:
(a) complaints regarding noise received by FGM and the EPA;
(b)the plaintiffs’ diaries recording their experience of noise at the property; and
(c)the EPA’s regulatory response to complaints about the noise generated by FGM’s operations.

The plaintiffs also point to the likelihood that documents provided to them by the EPA indicate that the EPA conducted its own noise testing at the property, and the results of that testing may become available should the plaintiffs issue subpoenas directed at the EPA in due course.
However, in the absence of any expert evidence to the effect that the data reviewed by Mr Evans is unreliable, or that his methodology and/or analysis is faulty, or that the EPA guidelines are not a reliable yardstick against which objectively determined noise levels can be assessed, it is difficult to see how evidence of a subjective nature, such as complaints and diary entries, can overcome the conclusions reached in the Evans report. In the absence of any expert evidence which would persuade me to the contrary, it seems to me that these documents go to the impact of the noise, not the presence or otherwise of the noise, and perhaps also to the issue of reasonableness.
Accordingly, in order to rebut the conclusions reached in the Evans report and/or in order to support a contention that the Evans report does not provide a complete answer to the plaintiffs’ claims in this proceeding, the plaintiffs need to put on evidence which is far more probative than what they have done to date.

However, given the nature of the proceeding (a nuisance claim, which by its very nature, is highly fact dependent) and the approach taken by the plaintiffs to the summary judgment application, I adjourned the further hearing of the summary judgment application in order to:

(a) provide the plaintiffs with an opportunity to issue a subpoena directed at the EPA;

(b) provide the plaintiffs with an opportunity to file and serve their expert evidence in response to the Evans reports; and

(c) allow the testing of noise levels at the property to proceed in accordance with the protocol put in place by the pre-trial orders made on 1 November 2023 (‘November 2023 orders’), save that I required that the experts provide a joint report, not separate reports.

The further evidence

Since the first ruling, the parties’ experts have conducted noise testing at the property, and filed a joint report dated 6 November 2024 (‘joint report’). The plaintiffs also filed reports prepared by their expert, Mr Les Huson, on 10 September 2024 and 21 November 2024 (‘Huson reports’). The plaintiffs also relied upon a further affidavit sworn by Ms Tannock on 25 October 2024,[6] which, among other things, exhibited documents produced upon subpoena by the EPA (‘EPA documents’), including a report prepared for the EPA in 2021 regarding noise levels emanating from the mine by Applied Science Connect (‘ASC report’).[7]
[6]The defendant objected to parts of this affidavit. It is not necessary to resolve these objections for the purpose of the summary judgment application.
[7]The defendant objected to the ASC report being received into evidence, on the basis that the author of the ASC report has not been called to give evidence, and on the basis that the underlying data relied upon by the authors had not been produced by the EPA. During the course of the hearing on 25 November 2024, I indicated that I would receive the ASC report into evidence, not for the purpose of determining the correctness or otherwise of its conclusions, but for the purpose of noting its existence and contents.

The ASC report was completed on 21 November 2021, and it is not clear whether it was prepared by EPA officers or external consultants. The ASC report referred to noise measurements and audio recordings carried out at three residences located near the defendant’s operations, including the property, in August 2021. While the ASC report contained a detailed analysis of the noise measurements taken at various locations, neither the ASC report or the other EPA documents included the underlying data.

Under the heading, ‘Is the noise unreasonable?’, the ASC report included the following:

The emission of low frequency noise was assessed 1/3 octave band spectra and compared to the threshold levels in Noise Guidelines: Assessing low frequency noise (publication 1996). The measured 1.3 octave band levels at the residences are below the threshold levels, indoors and outdoors. While the noise levels are relatively low, they are perceived by three different reporters, at three different locations, and changes in level correspond to the records made by the residents. Also pulsing, variations are observed at times, which may increase the ability for the residents to perceive the noise.
The factors in the definition of unreasonable noise in the Environment Protection Act 2017 were also considered. There is evidence to support a finding of unreasonable noise having regard to the volume, character, duration, time, and place, and how often the low frequency noise is emitted.

The ASC report also included an analysis of noise recordings taken at a time when the defendant scheduled a shutdown of its operations. While it seems that there was a reduction in noise levels during the period of the shutdown, it is not entirely clear from the ASC report what role this analysis had in shaping the author’s conclusion that:

There is evidence to support a finding of unreasonable noise having regard to the volume, character, duration, time and place, and how often the low frequency noise is emitted.

The EPA documents also included a further report by Applied Science Connect finalised on 26 May 2023 which compared noise levels at the property and a nearby residence in August 2022 and February-March 2023 following works carried out by the defendant upon the mine’s ventilation systems. Again, the underlying noise measurement data was not produced by the EPA. While it seems from a review of this further report that there were changes to noise levels over the period under review, it is not possible for me to ascertain whether the noise levels were considered by the author to be unreasonable as at either August 2022 and/or February-March 2023.

Turning now to the joint report, the joint report shows that the experts agreed on the following matters:

(a) the survey and measurements conducted at the property between 10 and 17 September 2024 (‘testing period’) fulfilled the requirements and intent of the agreed protocol;

(b) neither expert could perceive noise emanating from the defendant’s operations when they attended the property;

(c) any noise emanating from the defendant’s operations was below the level prescribed by the relevant regulations;

(d) low frequency noise was below the level prescribed by the EPA guidelines;

(e) the EPA guidelines do not provide an objective way to assess characteristics of noise that can increase annoyance;[8]
[8]However, as can be seen from the discussion later in these reasons, it is not clear whether the experts agree as to the significance of the characteristics of noise (for example, whether there is ‘pulsing’ noise), as opposed to the levels of noise, when ascertaining whether there is a nuisance. The Evans reports focus only on the levels of noise measured at the property, while Mr Huson states that the characteristics of noise need to be taken into account.

(f) there is low frequency noise at the property in the 16 Hz and 25 Hz one-third octave bands for which the defendant’s operations are the probable source;

(g) there is also low frequency noise at the property in the 63 Hz one-third octave band for which it is uncertain whether the defendant’s operations are the source;

(h) for the noise at 16 Hz and 25 Hz for which the defendant’s operations are the probable source, the measured noise levels remained below the assessment criteria chosen by each expert throughout the survey period;

(i) for the noise at 63 Hz for which the source is unclear, the measured noise levels indicate perceptible low frequency noise;

(j) ground-borne vibration levels at the property are well below acceptable levels, noting that the experts did not interpret the plaintiffs’ reports of perceived ‘vibrations’ to refer to ground-borne vibrations; and

(k) any noise from the defendant’s operations which is present at the property is transmitted as air-borne noise, not structure-borne noise.

The matters upon which the experts disagreed were as follows:

(a) the EPA guidelines represent the appropriate guideline with which to assess low frequency noise in Victoria;

(b) the low frequency noise levels in the 16, 25 and 63 Hz one-third octave bands at the property varied during the survey period. The first night of 10 September was the occasion during the testing period when the highest low frequency noise levels were detected at the property;[9]
[9]Mr Huson did not disagree with this proposition, but he had not completed his analysis of the data collected between 11 September 2024 and 17 September 2024 by the time the joint report was completed.

(c) for the noise at 63 Hz and 25 Hz for which the defendant’s operations are the probable source, the measured noise levels indicate perceptible low frequency noise on the balance of probabilities;

(d) for the noise at 63 Hz for which the source is unclear, the measured noise levels remained below the relevant assessment criteria throughout the testing period; and

(e) the diary notes prepared by the plaintiffs during the testing period are inconsistent with the measurements of low frequency noise.[10]

[10]See footnote above.

The joint report also contained the experts’ commentary on the key areas of agreement and disagreement between them, and separate reports by each expert concerning their own testing and analysis.

Turning now to the Huson reports, in his first report dated 9 September 2024, Mr Huson said that he disagreed with the opinions expressed in the Evans reports, because, among other things:

(a) Mr Evans has dismissed four per cent of the measurements which showed low frequency noise levels exceeding the thresholds in the EPA guidelines;

(b) in any event, Mr Evans’ conclusions are based upon measurements taken by the plaintiffs themselves, who do not hold relevant expertise;

(c) Mr Evans did not comply with the measurement and assessment procedures specified in the EPA guidelines; and

(d) Mr Huson opined as follows:

The discussions in the Evans Reports about the correlation of human perception to [the EPA guidelines] thresholds is superficial. Humans can perceive low frequency sound below the [EPA guidelines] thresholds.

Mr Huson referred to the thresholds for low frequency noise in the EPA guidelines, but observed that in addition to those thresholds, it is necessary to consider the characteristics of low frequency noise. Mr Huson stated as follows:

It is standard practice to add sound characteristic penalties to measured sound levels. If a measured sound contains impulsive, tonal or other noticeable characteristics, such a frequency modulated sound content, then a penalty is added to the measurement before comparison is made to any suggested noise criterion value.
The NSW Industrial Noise Policy (available on the NSW EPA website, uses the difference between dBC and dBA as a test to determine a low frequency noise penalty correction. If the difference exceeds 15 dB then a 5 dB penalty is applied to measurements.
There is no such prescriptive penalty guidance in EPA 1996 to address characteristics. A tonal penalty may apply to sounds reported at the Plaintiff’s property. Mr Evans has not considered this in the conclusions of the Evans Reports.
The Evans Reports did not refer to Appendix C of the AECOM report that was included in the Evans review. Feedback from [the plaintiffs] is included in Appendix C about the characteristics of noise and vibration. Reference is made to the noise sometimes pulsing. The noise being referred to as pulsing low frequency noise is a characteristic that can warrant a penalty to measured sound levels, which in turn should then be compared to the EPA 1996 thresholds.
It should be remembered that tabled one-third octave sound levels in EPA publication 1996 are based upon measured values at least 5-minutes long (Leq,5min) that may not correctly quantify short duration pulsing.
The Evans Reports simply assume that EPA publication 1996 tabled one-third octave limits are absolute, without consideration of the characteristics of the sound. In my opinion this is incorrect.
The consideration by Mr Evans that the EPA 1996 thresholds relate to human perception are ill founded. Humans can perceive low frequency sound at levels below the threshold limits in EPA 1996.

Mr Huson then went on to a specific case study reported in the scientific literature, and went on to say as follows:

In summary, low frequency noise investigations can demonstrate human perception leading to nuisance despite there being compliance with averaged 5-minute measurement thresholds described in [the EPA guidelines].

In response to Mr Huson’s report, the defendant filed and served an affidavit affirmed by Ms Carroll on 25 October 2024 confirming the defendant’s intention to file further expert evidence in reply. Subsequently, Ms Carroll affirmed a further affidavit on 14 November 2024, annexing a further report by Mr Evans dated 14 November 2024, which responded to Mr Huson’s first report. In her affidavit of 14 November 2024, Ms Carroll also commented upon the ASC report and other EPA documents, and commented on the Evans reports and the joint report. Otherwise, Ms Carroll’s affidavit addressed, among other things, disputes between the parties regarding matters which are not directly relevant to the issues in the current application.

In his report dated 14 November 2024, Mr Evans said that he had been provided with the following documents:

(a) the first Huson report;

(b) the plaintiffs’ diaries during the testing period; and

(c) Ms Tannock’s affidavit of 25 October 2024, including the ASC reports.

Mr Evans summarised his conclusions as follows:

None of the additional documents provided to me establish noise levels that exceed the threshold levels in the EPA Low Frequency Noise Guideline. Furthermore, the additional documents do not establish any noise from FGM at the Property that is higher than what Mr Huson and I recently measured and reported on as part of the Joint Report we have prepared for the matter. In fact, the additional documents present considerably lower noise levels from FGM than were considered in the Joint Report.
The EPA reports identify noise associated with FGM at the Property at a frequency of 16 Hz. I do not agree with the statements in the EPA 2021 Report regarding the potential for low frequency noise disturbance from FGM at the frequencies they identify (16 to 20 Hz) as the levels presented for the Property in the EPA 2021 Report are 12 to 14 dB lower than those measured by Mr Huson and me at 16 Hz, which we agreed was unlikely to be a source of annoyance. Additionally, the analysis of complaints in the EPA 2021 Report is insufficient to support the conclusions in that report, most notably as they started with the assumption that low frequency noise was the source of observations and appear to have not considered times when the residents made reports but there was no corresponding evidence of noise from FGM.
The AECOM 2022 Report identifies a noise at 25 Hz that can be attributed to FGM and measured near the Property at times. While the noise is measurable it is, however, reported by AECOM to be more than 20 dB below the EPA Low Frequency Noise Guideline threshold, which indicates that they are 8 dB or more lower than what Mr Huson and I assessed in the Joint Report. Therefore, I consider the AECOM levels to be very unlikely to be perceptible.
The reports do establish that there is low frequency noise arising from other sources at the Property that are unrelated to FGM. Review of the EPA 2021 Report shows that there is noise at 63 Hz at the Property which is at the same frequency that Mr Huson and I measured and so may be the same source. The 63 Hz noise in the EPA 2021 Report cannot arise from FGM as it was measured at a much lower level at a residence that is approximately 900 m closer to FGM than the Property.

Mr Huson prepared a further report on 20 November 2024 in response to Mr Evans’ report of 14 November 2024. In this report, Mr Huson, among other things, repeated his earlier observations that Mr Evans had failed to take into account the characteristics of low frequency noise in accordance with the EPA guidelines. Mr Huson also referred to what he described as the ‘Roberts low frequency assessment method’ as being the preferred methodology for assessing low frequency noise. Mr Huson also referred to the noise measured in the 63 Hz one-third octave band referred to in the joint report, stating as follows:

Section 6 addresses instruction question (b) but adds that Mr Evans has noted (6.2.4) the source of the 25 Hz 1/3 octave band noise to be caused by screens in or around the FGM processing plant. Mr Evans has again not considered the full assessment approach required in EPA 1996, as instructed, that must also consider the characteristics of low frequency noise. Mr Evans at 6.2.9 explains that we measured sound in the 63Hz 1/3 octave band at the Plaintiffs’ property that can exceed threshold values from our chosen analysis approaches but explains that there can be many sound sources that can contribute to such sound levels. It remains that the source of the noise at 59.7Hz I have identified in the joint report has yet to be identified by us, but given that the sound is not associated with vehicles on nearby roads and there is no other industry in the area that operates 24/7 it is worth further investigation to find out if the sound is coming from FGM operations.

The resumed hearing

At the resumed hearing of the summary judgment application on 25 November 2024, the defendant maintained its position that there is no admissible, objective evidence that there is currently any audible noise at the property which emanates from the defendant’s operations, and no admissible, objective evidence that there has been any audible noise in the past. The plaintiffs have been given the opportunity to put their best foot forward in that regard, and have fallen short. Accordingly, the plaintiffs’ claims in the proceeding have no real prospects of success, and should be dismissed.

The defendant submitted as follows:

The Plaintiffs have still not filed any evidence which establishes a sufficient prima facie plausibility as to merit further investigation and their case as pleaded remains sufficiently incredible or improbable that there is no fair or reasonable probability of the Plaintiffs proving it. It is not enough for the Plaintiffs to point to the mere existence of a disagreement or difference of opinion between the experts for the Court to be satisfied that their case has any real prospects of success at trial if the resolution of a difference does not ultimately matter. It remains the case that the Plaintiffs (having now filed their expert evidence for trial) cannot objectively establish that low frequency noise they say they perceive is in fact generated by the Defendant.
In other words, the Plaintiffs’ core assertion that there is a causal connection between a low frequency noise said to be perceived by them and any noise emitted by the Mine has no ring of credibility to it.

The defendant referred to the matters of agreement in the joint report, and submitted as follows (omitting footnotes):

First, for noise at 16 Hz and 25 Hz for which FGM is the probable source, the measured noise levels are below the assessment criteria chosen by each expert throughout the survey period.
Secondly, the one-third octave band sound level at 16 Hz is 21 dB below the threshold and the experts agree this is unlikely to be the cause of noise annoyance. It follows that this component of noise can be disregarded altogether.
Thirdly, the perceptible noise in the 63 Hz one-third octave band does not have an identified source (i.e. it is unknown whether FGM is the source). It follows that this component of noise cannot be attributed to the Defendant.
That leaves the 25 Hz one-third octave band. In order to succeed on their pleaded case, the Plaintiffs must be able to establish by cogent proof that any unreasonable noise they are perceiving is at the measured 25 Hz levels. The other measured levels cannot be causal.
Mr Evans says the measured 25 Hz levels are 8 dB below the indoor EPA threshold level throughout the testing period (which is not controversial). However, Mr Huson says there is tonality between 25 Hz and 63 Hz and that tonality is below the level of annoyance. His opinion rises no higher than saying that the 25 Hz may be annoying for a more sensitive person. Mr Evans relies on the EPA guideline threshold to conclude that the level of 25 Hz measured is probably not perceptible but for present purposes while this adds weight to the conclusion that the Plaintiffs cannot prove their case it may not matter.
This is because the inescapable conclusion is that the Plaintiffs will not be able to establish at trial that the noise they say they are perceiving is generated by the Defendant. This is because (as Mr Evans explains) the Plaintiffs would not be able to differentiate between noise at 25 Hz and 63 Hz. In fact, Mr Evans says that it is more likely that 63 Hz is perceptible than 25 Hz frequency because of the relative levels measured. In other words, if the Plaintiffs are perceiving anything, they are perceiving noise at a frequency which no expert attributes to the Mine.
There is a second insurmountable causal difficulty. Mr Evans says that the Plaintiffs’ reports of perceived noise do not correlate with the measurements of low frequency noise made by the experts, including Mr Huson’s unilaterally extended period of measurement which followed the agreed measurement on 10 and 11 September 2024. That is, at times during the survey when the Plaintiffs report high levels of disturbance, the measured low frequency noise levels were significantly lower than they were on the night of 10 September 2024 (being the first night of testing, when the highest low frequency noise levels were measured).

As for what the defendant described as ‘historical noise’ (prior to significant modifications to the defendant’s operations in 2023 in response to the EPA notices), the defendant noted that Mr Huson has commented upon the Evans reports, but he did not affirmatively conclude that the data available to him shows that the noise levels at the property were problematic, ‘let alone why or what the source was’. Mr Huson’s evidence could not assist the plaintiffs to discharge their burden of proof with respect to historical noise.

Further, the ASC report may well not be admissible at trial. Even if it is admissible, both Mr Evans and Mr Huson agree that the levels of noise identified by the ASC as emanating from the defendant’s operations are unlikely to be annoying, and, to the extent that the ASC report refers to other noise, it does not identify the defendant’s operations as the likely source of that noise.

The defendant submitted as follows:

Mr Evans has also considered the other [EPA documents]. He concludes there is no other data which establishes low frequency noise of concern generated by the Defendant affecting the Property. No positive case to the contrary emerges from the opinions of Mr Huson.
It follows that the Plaintiffs’ case of historical nuisance has no real prospects of success.

The defendant submitted further, in summary, as follows:

(a) the matters of disagreement between Mr Evans and Mr Huson are of no significance;

(b) to the extent that the experts say that there was audible low frequency noise detected at the property, the experts are unable to say that the defendant’s operations are the source of that noise;

(c) referring to the ASC report, no underlying data was produced by the EPA, and both experts say that they require that data in order to express an opinion regarding the opinions expressed in the ASC report;

(d) Mr Huson’s statement to the effect that it is ‘plausible’ that low frequency noise in the 16-25 Hz range is perceptible does not amount to proof of a kind that would suggest that the plaintiffs’ claims have any real prospects of success;

(e) an analysis of the data in the joint report, which is the trial proof, shows no correlation between the recording of noise at the property with noise recorded at the defendant’s operations, and between noise recorded at the property and the reports of noise in the plaintiffs’ diaries;

(f) the ASC report indicates that noise measured at the property in 2021 probably did not emanate from the defendant’s operations, because the same noise was recorded at a lower level at a property much closer to the defendant’s operations;

(g) Mr Huson has criticised the Evans reports, but he has not made a positive assertion that, based upon the reports and other information he has seen, there is a noise problem at the property which is causally connected to the defendant’s operations;

(h) in relation to the plaintiffs’ submission that they themselves will give evidence at trial, the defendant submitted as follows:

Again, what use would that have in terms of cogent proof in circumstances where there was a specific process set out to correlate any objectively measurable noise might be causally connected to the mine with the plaintiff’s perception, and that process has revealed no correlation. In our submission, that can’t now be cured by the plaintiffs giving evidence at a trial as to their general perceptions of noise which are not tied to any contemporaneous objective measurements.

(i) finally, with respect to s 64 of the CPA, this proceeding is not one where there are duelling experts, or a matter of great complexity which is only suitable for trial. There is no meaningful disagreement between the experts on any factual matter of significance.

In response, the plaintiffs submitted that I should take a broader view of what might be considered as relevant evidence regarding current and historical noise levels at the property. In addition to the Huson reports, the plaintiffs will rely upon their own experience of noise levels at the property, along with the evidence of neighbouring residents. While no expert report compliant with the requirements of Order 44 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’) has yet been filed by the author of the ASC report, there is no reason why the plaintiffs could not call the author of the ASC report to give evidence at trial.

The plaintiffs submitted that, in an application of the current kind, the defendant bears the onus of establishing that the plaintiffs should be denied a trial. They have not discharged that onus, and the plaintiffs’ claims should be permitted to proceed to trial in the ordinary way.

The plaintiffs submitted that the EPA documents establish that:

The EPA’s independent expert testing concluded that there was evidence to support a finding of unreasonable noise at the plaintiffs’ property (and other properties), attributable to the FGM, which was measured to be below the threshold limit in the EPA Noise Guideline but nevertheless posed an extreme risk of high level harm warranting urgent, immediate action.

The plaintiffs also referred to the ASC report as providing ‘cogent evidence of unreasonable historical noise emissions’ from the defendant’s operations, and another expert report concerning the defendant’s ventilation system, which stated, among other things, ‘… analysis has shown that the fans were making a significant contribution to the community noise levels in the audible range of 40 to 160 Hz’.

The plaintiffs also referred to Mr Huson’s first report, and submitted as follows (omitting footnotes):

In the First Huson Report, Mr Huson considers the limitations of the questions asked of Mr Evans and considers them to have been a “pointless exercise”. He disagrees with Mr Evans’ assessment of the reliability of the SONUS and AECOM reports. Mr Huson emphatically states that Mr Evans incorrectly assumes that the EPA Noise Guideline tabled on-third octave limits are absolute without any consideration of the characteristics of the sound. Mr Huson explains that humans can perceive low frequency sound at levels below the threshold limits in the EPA Noise Guideline. Mr Huson provides the example of the Bag Plant to illustrate how pulsing noise may fall below the EPA Noise Guideline threshold limits but may still be perceivable by human beings and constitute a nuisance. Relevantly, Mr Huson points out that Appendix C of the AECOM report describes the noise as sometimes pulsing but Mr Evans did not take this noise character into account in his assessment in the First Evans Report, Second Evans Report, and Third Evans Report.

The plaintiffs referred to the joint report and the points of agreement and disagreement between Mr Evans and Mr Huson, and submitted as follows:

Importantly, however, the existence of numerous conflicting expert reports before the Court in respect of, among other things, noise emissions at 25Hz demonstrate that this is the very kind of matter the High Court in Spencer cautions against. This is a matter in which the Court is being drawn into a “mini-trial” to determine complex facts in respect of the source of the noise emissions and the levels and characteristics of noise and how they should be assessed — and without the benefit of oral evidence from the experts or the testing of that evidence by cross-examination.
…
Alternatively, the dispute is of such a nature that only a full hearing on the merits is appropriate and, on that basis, the Court is empowered, under s 64 of the CPA, to dismiss the defendant’s application for summary judgment.
...
The need for further investigation may establish the FGM as the source of the 63Hz one-third octave band noise and the complexity of the facts to be determined make this dispute the kind of dispute that can only be appropriately determined at a full hearing.

The plaintiffs submitted further, in summary, as follows:

(a) it is not suggested by the defendant that the plaintiffs’ claim is defective, rather, what is being asserted is that the evidence, on the balance of probabilities, does not support the plaintiffs’ claims;

(b) a critical point of difference between the experts is the role of assessing the characteristics of noise and how the characteristics of noise affects whether there is a nuisance;

(c) the ASC report also refers to the characteristics of the noise, including ‘pulsing’, as supporting a conclusion that noise levels under the thresholds in the EPA guidelines can be unreasonable;

(d) the defendant complied with the EPA notices and did not seek to challenge the EPA notices, or seek to set aside the EPA notices;

(e) while the noise recorded at the property during the testing period has not been conclusively determined to have emanated from the defendant’s operations, no determination has been made to the contrary. If the plaintiffs’ claims are permitted to proceed to trial, further investigations will be made, and an application for leave to adduce further expert evidence will be made; and

(f) a summary judgment application is no substitute for the process of having the experts and others give evidence at trial and being subject to cross-examination and the Court’s own inquiries, particularly given the disputes between the experts regarding methodological issues.

Consideration

I consider that the plaintiffs’ claims in this proceeding should be permitted to proceed to trial. While I accept that presently, the preponderance of the objective evidence suggests that the plaintiffs’ case has some hurdles to overcome, in the current application, what the defendant has effectively asked the Court to do is conduct a desk-top review of the expert evidence in substitution for a trial in order to conclude, on a summary basis, that the plaintiffs’ claims have no real prospect of success, and there is no other reason why the proceeding should proceed to trial.

Much of the evidence relied upon by the defendant, including Mr Evans’ findings in the joint report and some of Mr Huson’s findings in the joint report, supports the defendant’s contention that there is not, and has never been, any perceptible noise at the property emanating from the defendant’s operations. In the absence of any evidence to the contrary from an appropriately qualified expert, it would have been open for me to conclude that the defendant had discharged its burden to establish that the plaintiffs’ claims in this proceeding had no real prospects of success. However, there are certain aspects of the evidence filed by the plaintiffs after the first ruling which casts some doubt upon the conclusions expressed in the Evans reports, such that the necessary degree of certainty and comfort required to grant summary judgment in what ultimately may be a complex factual dispute is absent. I am not satisfied that further pre-trial investigations and the process of testing the evidence at trial would almost inevitably lead to an unsuccessful result for the plaintiffs at trial, such that their claims in the proceeding should be dismissed without adjudication.

The approach urged upon me by the defendant, at least in the context of the evidence which is now available, is contrary to settled authority. The leading authority concerning the test for summary judgment under the CPA is the decision of the Court of Appeal in Lysaght v Building Solutions Pty Ltd.[11] In that case, while the Court held that while the test in s 63 of the CPA is more liberal than the ‘hopeless’, or ‘bound to fail’ test that previously applied, the Court also said that ‘…it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and this should not be exercised unless it is clear that there is no real question to be tried’.[12]
[11](2013) 42 VR 27.
[12]Ibid [35].

Further, in Yin v Wu,[13] the Court of Appeal emphasised the need for caution in exercising the power to grant summary judgment, referring to the decision of the High Court in Spencer v Commonwealth,[14] which in turn endorsed the following statement in the decision of the House of Lords in Three Rivers District Council v Bank of England (No 3) (omitting footnotes):[15]

…The method by which issues of fact are tried in our courts is well settled. After the normal processes of discovery and interrogatories have been completed, the parties are allowed to lead their evidence so that the trial judge can determine where the truth lies in the light of that evidence. To that rule there are some well-recognised exceptions. For example, it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all documents or other material on which it is based. The simpler the case the easier it is likely to be to take the view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence. As Lord Woolf said in Swain v Hillman, …that is not the object of the rule. It is designed to deal with cases not fit for trial at all.[16]

[13](2023) 73 VR 21.

[14](2010) 241 CLR 118.

[15][2003] 2 AC 1.

[16]Ibid [95].

In its submissions, the defendant relied upon my decision in Campaspe Investments Pty Ltd v PBP Accounting Solutions Pty Ltd[17] (‘Campaspe’), where I granted summary judgment in favour of a plaintiff despite the defendant filing evidence contesting some of the allegations made by the plaintiff in its statement of claim.
[17][2015] VSC 26.

The defendant in Campaspe[18] was the long-term accountant for a group of companies and family trusts controlled by an elderly woman who, later in life, was diagnosed with dementia. The accountant had a substantial degree of control over the group’s bank accounts, and later investigations showed that over a five year period, over $5 million had been transferred from those bank accounts to accounts controlled by the defendant. Those funds were used in turn for the purchase of cars, boats, marina berths, and lifestyle properties, and the payment of business expenses. The defendant said that all of the transfers were authorised by the now deceased elderly woman, and were interest bearing loans made to him, his companies, and to his other clients, to be invested at his discretion. None of the alleged loans were documented or secured.
[18]Ibid.

The sole factual issue in Campaspe[19] was whether the transfers were authorised. It was in the context of the above that I made the following observations:

In my view, this application might well be an instance of a case where while the respondent’s case is not “hopeless”, or “bound to fail” as such (according to the test laid down in General Steel Industries Inc v Commissioner of Railways (NSW)), it does not have a real prospect of succeeding at trial. In the current case, the affidavit evidence reveals a factual dispute about a critical matter: that is, whether Mrs Moorhead authorised Mr Wortman to effect the transfers to PBP to be deployed at Mr Wortman’s discretion. It may well be that prior to the enactment of the Civil Procedure Act 2010 the existence of this factual contest would be sufficient to persuade a court that the matter proceed to trial. However, even under the previous regime, the defence put forward by a defendant must have some ring of credibility, with the Court posing the question: does the defendant’s account of the facts have sufficient prima facie plausibility as to merit further investigation, or is it so incredible or improbable that there is no fair or reasonable probability of the defendant setting up a defence to the plaintiff’s claim?

Therefore, in determining whether to grant summary judgment, I am required to consider whether the first and second defendants’ defence, albeit not articulated in a formal pleading, has any real prospects of success, not whether the defence of the first and second defendants has a mere sliver of a chance. Evaluating the evidence relied upon by the plaintiffs, I consider that it is extremely unlikely that a court would accept Mr Wortman’s contention that the transfers were authorised.[20]

[19]Ibid.

[20]Ibid [28]–[29].

This is a completely different case. The defendant’s evidence in Campaspe[21] was self-serving, and quite frankly, preposterous, and, in any event, the practical consequences of granting summary judgment were not particularly grave, given that, even on the defendant’s own case, the funds transferred to him were loans which were repayable to the plaintiff. In the current case, while I accept the plaintiffs may have some difficulty in discharging their burden of proof at trial, their claims cannot be described as preposterous, incredible or improbable, in the light of the EPA notices, which were presumably not issued lightly, and the differing views of the experts of how noise is to be evaluated for the purpose of establishing whether there is a nuisance.
[21]Ibid.

Generally, where an application for summary judgment is refused, it is not appropriate to canvass the merits of the parties’ claims and defences in any detail,[22] and, in any event, I am conscious of the need for some expedition in determining the current application, given that the proceeding has been set down for trial. However, I shall explain why, contrary to my preliminary view at the time of the first ruling, I have concluded that it is not appropriate to grant summary judgment in favour of the defendant.
[22]See the commentary in Williams – Civil Procedure Victoria at [I 22.08.30].

Prior to doing so, a review of the decision of Richards J in Uren v Bald Hill Wind Farm Pty Ltd[23] (‘Uren’) is instructive. While there are of course differences in the underlying facts, her Honour’s reasons illustrate what might occur should this proceeding be permitted to proceed to trial. In particular, I note the following features of the trial in Uren:[24]
[23][2022] VSC 145. There was no appeal from her Honour’s decision.
[24]Ibid.

(a) the evidence of the plaintiffs as to their subjective experience of the noise emanating from the wind farm was admissible, and in some respects, preferred over the evidence of the defendant’s expert witness;

(b) the expert witnesses (including Mr Huson) gave evidence concurrently, over the course of three hearing days;

(c) there was a dispute between the expert witnesses as to the appropriateness of the various methodologies used to assess noise levels (and to assess whether the noise levels were annoying) which needed to be resolved by her Honour;

(d) her Honour observed that the question of the appropriate methodology to be used to assess noise levels needed to be the subject of evidence;

(e) her Honour concluded that evidence of compliance with a particular standard did not of itself preclude a finding that noise levels were unreasonable;

(f) all of the expert witnesses who gave evidence at trial took into account the characteristics of the noise emanating from the wind farm (including its ‘tonality’) when forming an opinion as to whether the noise was excessive;

(g) the evidence of Mr Huson was preferred because his evidence ‘[struck] a balance between subjective and objective considerations’;[25] and

(h) the expert witnesses agreed that certain people can be hypersensitive to noise, and that their perceptions of noise may be influenced by their attitude to the likely source of the noise. However, her Honour relied upon the evidence of neighbouring residents to reach her conclusion that the plaintiffs before her were not hypersensitive to the noise by reason of their strident opposition to the wind farm.

[25]Ibid [190].

There are some parallels between the current case and the issues before Richards J in Uren.[26] In the current case, there will also be evidence from the plaintiffs regarding their subjective perceptions of noise. The weight to be given that evidence will be a matter for trial, and the defendant did not contend that this evidence would be inadmissible. The plaintiffs say they will call evidence from neighbouring residents. Again, the weight to be given to that evidence will be a matter for trial. Further, while I accept that the investigations carried out by the EPA into the defendant’s operations and the issue of the EPA notices does not establish that there was noise emanating from the defendant’s operations which caused a nuisance to the plaintiffs, evidence concerning the EPA’s investigations and regulatory response may be relevant corroborative evidence.
[26]Ibid.

As for the expert evidence, it is apparent from the reasons in Uren[27] that there are many ways in which noise levels can be assessed, and, to the extent that there are disputes about the methodology to be used to assess noise in the current case, those disputes will need to be the subject of evidence at trial. Based upon the first Huson report, there is likely to be a dispute as to whether the EPA guidelines require an evaluation of the characteristics of noise in addition to the levels of noise in order to assess whether the noise constitutes a nuisance, and if so, how that evaluation is to be carried out. Significantly, in Uren,[28] the question of whether any assessment of whether noise amounted to a nuisance needs to take into account the characteristics of noise as well as the levels of noise did not appear to be in dispute. The experts in that case agreed that the characteristics as well as the levels of noise needed to be taken into account. Mr Evans may disagree with that proposition, but a dispute between experts of that nature cannot be resolved in the context of a summary judgment application.
[27]Ibid.
[28]Ibid.

The plaintiffs in Uren[29] were ultimately successful at trial, but not much turns upon that for present purposes. Rather, how the claims in that proceeding were litigated at trial illustrates that the plaintiffs’ claims in this proceeding are contestable, and that the definitive statements made in the Evans reports to the effect that there is no audible noise at the property are capable of being undermined if evidence about alternative methods of evaluating noise, and the subjective evidence of the plaintiffs and others is accepted at trial.
[29]Ibid.

There are three key pieces of evidence before me which were not available to me at the time of the first ruling, being:

(a) the Huson reports;

(b) the joint report; and

(c) the ASC report.

Contrary to the submissions of the defendant at the resumed hearing, there are some features of this evidence which show that, while the plaintiffs may not necessarily ultimately be successful at trial, there is sufficient evidentiary support for their claims to render it inappropriate to grant summary judgment. It is clear from the Huson reports and the joint report that Mr Huson considers that Mr Evans’ emphatic conclusion to the effect that there is not, and has never been any audible noise at the property emanating from the defendant’s operations is flawed, in that Mr Evans has failed to take into account the characteristics of noise. As I understand the discussion in the Huson reports, if noise with particular characteristics is present, then a ‘penalty’ should be added to the measured noise levels. Mr Huson does not make a positive assertion that a particular penalty amount should be added to the noise levels measured at the property, either in the past or during the testing period. He also does not assert that any such analysis would lead to a conclusion that noise levels which constitute a nuisance have been detected at the property. However, I presume such an analysis could be undertaken, and it is not yet possible, on the information currently available to me, to predict the conclusions that could be drawn from any such analysis.

The defendant’s submissions appear to assume that the plaintiffs will not be permitted to adduce further expert evidence before the trial. While I accept that the plaintiffs will need to apply to vary the timetable in the November 2023 orders, given the period of time between the date of this decision and the trial scheduled for August 2025, being some seven months, it is difficult to see how leave to adduce further expert evidence would be refused. Indeed, Order 44 of the Rules provides a default position that expert evidence can be filed and served 30 days in advance of the trial.

Further, what the experts do agree upon is that there is no objective means of assessing the characteristics of noise. Given that agreement, and given that Mr Huson says that the characteristics of noise are important, then that makes the availability, admissibility and evaluation of subjective and/or circumstantial evidence an issue to be determined at trial. The defendant may, relying upon the Evans reports, contend that evidence of that nature is irrelevant, or at least should be afforded little weight. But such an argument is quintessentially a matter for debate at trial, not a debate that can be resolved in the conduct of the summary judgment application.

The defendant’s position subtly shifted between the first return of the defendant’s applications and the resumed hearing. The defendant originally contended that there was no audible noise at the property at all, relying upon the plaintiffs’ own measurements and the data in other reports prepared for the plaintiffs and the defendant. However, by the time of the resumed hearing, no doubt as a consequence of the findings in the joint report regarding the presence of noise in the 63 Hz range, the defendant concluded that there was no evidence to support a conclusion that there was an audible noise at the property caused by the defendant’s operations.

However, as observed by the plaintiffs in their submissions, Mr Huson has reached no concluded view as to the source of any identified noise. He merely states that the source of the noise warrants further investigation. Again, there is plenty of time for that to occur. Also, questions of causation again raise issues about the availability, admissibility and assessment of subjective and circumstantial evidence, such as the evidence of neighbours closer to and further away from the defendant’s operations, the findings and actions of the EPA, the existence of other possible sources of noise in the neighbourhood, and the impact of the defendant’s remediation works on noise emissions. Again, all of these matters are contestable and debatable, and as such are really matters for trial.

I accept, as far as it goes, the defendant’s submissions to the effect that the issue of the EPA notices cannot, of itself, be conclusive proof that the defendant’s noise emissions were causing a nuisance. However, as noted earlier in these reasons, it is unlikely that the EPA notices were issued lightly, and it is now evident from the chronology of events revealed by the production of the EPA documents that the EPA notices were issued as a consequence of the EPA receiving the ASC report, which concluded that the defendant’s operations emitted unreasonable levels of low frequency noise, consistent with the plaintiffs’ claims in this proceeding.

These conclusions may not ultimately be established to be correct, and I accept that it will be difficult for the plaintiffs to rely upon the ASC report without calling the author of the reports, and/or without the parties’ experts having access to the underlying data upon which the ASC report was based. However, the ASC report was prepared just over three years ago, such that its author should be able to be located. As for the underlying data, it is odd that this material was not produced by the EPA, but there may well be an explanation for its absence. I would not be prepared to conclude at this stage that this data no longer exists, and/or is not recoverable.

For all of the reasons above, I do not consider that it is appropriate to conclude that the plaintiffs’ claims in this proceeding have no real prospects of success.

Accordingly, the summary judgment application (including, for the avoidance of doubt, the stay application) will be dismissed. The question of how the costs of the application are to be dealt with raises issues of some complexity. I will make directions for the filing and service of draft orders and written submissions with respect to the question of costs, and will schedule a further hearing in due course if necessary.

SCHEDULE OF PARTIES

S ECI 2023 03819
BETWEEN:
KIRSTY MAREE MCDONALD	First Plaintiff
KAREN MICHELLE OLIVER	Second Plaintiff
- v -
FOSTERVILLE GOLD MINE PTY LTD (ACN 010 604 878)	Defendant

[2025] VSC 1

10 January 2025