Merezhko v Diamandi - [2019] SADC 159

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
MEREZHKO v DIAMANDI & ANOR
[2019] SADC 159
Judgment of His Honour Judge O'Sullivan
30 October 2019
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA
The applicant seeks review by this court, of a judgment entered against her by a Magistrate in a minor civil action on 25 July 2019.
The applicant was the plaintiff in those proceedings, and sought damages in nuisance against her neighbour, the respondent.
The applicant alleged that the respondent’s two dogs bark day and night, the cockatoo screeches, their children play outside and ‘often scream as loud as they can,’ that the respondent turns his music up when the applicant plays her own music, that the respondent whistles when he mows the lawn, and that a camera on the respondent’s premises captures the back of the applicant’s house and outside kitchen sliding door.
The respondent counterclaimed, joining his wife as a plaintiff. Together, the respondents alleged harassment and nuisance.
Held:
1. Decision dismissing the applicant’s claim affirmed;
2. Judgment on counterclaim rescinded;
3. Costs awarded to the respondents in the sum of $500.
Magistrates Court Act 1991 (SA) s38, referred to.
Harradine v District Court of South Australia [2012] SASC 96; Painter v Reed [1930] SASR 295; McKenzie v Powley [1916] SALR 1; Robson v Leischke [2008] NSWLEC 152; Stoakes v Brydges [1958] QWN 5; Pelmothe v Phillips [1899] 20 L R (NSW) (L) 58 (FC), considered.

MEREZHKO v DIAMANDI & ANOR
[2019] SADC 159
Introduction

This is an application brought by Ms Krystyna Merezhko (“the applicant”) pursuant to s 38 of the Magistrates Court Act 1991 seeking that this court review a judgment entered against her by a Magistrate in minor civil action number 18-3633 in the Adelaide Magistrates Court on 25 July 2019.
The applicant was the plaintiff in those proceedings, which involved a claim for nuisance against her neighbour who is the defendant (“the respondent”). The applicant lives in a rental property on Prospect Road. She asserts that excessive noise comes from the adjacent property to that in which she resides. The adjacent property is owned by the respondent and his wife.
The claim by the applicant is against the respondent only. She alleges that the respondent’s two dogs bark day and night, the cockatoo screeches, their children play outside and “often scream as loud as they can,” and that the respondent turns his music up when the applicant plays her own music. The applicant’s complaints also include that the respondent whistles when he mows the lawn and that a camera on the respondent’s premises captures the back of the applicant’s house and the kitchen sliding door.
The applicant sought a mandatory injunction that the camera be removed and that the applicant keep his dogs inside the house. She also claims damages for nuisance.
The respondent counterclaimed. He joined his wife as a plaintiff by counterclaim (together, “the respondents”). In the counterclaim the respondents allege harassment and nuisance. The learned Magistrate set out the respondents allegations of harassment in annexure A to his reasons. Annexure A to the learned Magistrate’s reasons was exhibit D4 at the trial, and exhibit R6 on the review.
The conduct of the trial in the Magistrates Court
This matter was called on for trial before the learned Magistrate on 13 June 2019. Prior to trial, the respondents had issued subpoenas to both the Commissioner of Police (“the police”) and the city of Prospect Council (“the Council”). Apparently, the police had not provided all the documentation in their possession by the date of trial.
On 13 June 2019, the learned Magistrate did not proceed with the trial but received three exhibits and adjourned the matter to 19 July 2019. Those three exhibits were:
1Exhibit P1 – letters from Koerner Lloyd lawyers dated 5 November 2018 and 28 November 2018;
2Exhibit P2 – overhead photographs of the neighbourhood from Google maps;
3Exhibit P3 – letter from the city of Prospect to the plaintiff dated 20 May 2019.
The learned Magistrate informed the parties that he would read the subpoenaed documents prior to the resumed hearing and granted leave to the applicant and her tenant Mr Lloyd, to uplift the subpoenaed documents for no longer than 72 hours, copy them and return them to court no later than 5 July 2019.
At the trial of the matter the applicant and respondents represented themselves. In response to the subpoena, the Council provided a folder containing 134 numbered bundles of documents and two USB keys, one containing in excess of 60 video files. The police produced a number of documents, some of which were redacted.
The learned Magistrate heard oral evidence from Ms Merezhko and from each of the respondents. He also heard evidence from Mr Lloyd, who is a solicitor. Mr Lloyd cross-examined Mr Diamandi.
The nature of a minor civil action
Section 38 of the Magistrates Court Act (“The Act”), details the provisions which are applicable to the trial and any review of a minor civil action, and are as follows:
(1)The following provisions are applicable to the trial of a minor civil action:
(a)     The trial will take the form of an inquiry by the Court into the matters dispute between the parties rather than an adversarial contest between the       parties;
(b)     the Court will itself elicit by inquiry from the parties and the witnesses, and by examination of evidentiary material produced to the Court, the issues in dispute and the facts necessary to decide those issues;
(c)     the Court may itself call and examine witnesses;
(d)     the parties are not bound by written pleadings;
(e)     the Court is not bound by the rules of evidence;
(f)    the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(2)At or before the trial of a minor civil action, the Court should explore any possible avenues of achieving a negotiated settlement of the matters in dispute.
(3)After giving judgment in a minor civil action, the Court—
(a)     should advise the unsuccessful party of his or her right to apply for review of the proceedings by the District Court; and
(b)     should give the successful party any advice or assistance as to the enforcement of the judgment that the Court considers appropriate in the circumstances; and
(c)     if there is a judgment debtor who is present, should proceed immediately to investigate his or her means of satisfying the judgment and to take any further action that appears appropriate in view of the results of that investigation.
(4)The following provisions govern representation in minor civil actions:
(a)     representation of a party by a legal practitioner will not be permitted unless—
(i)another party to the action is a legal practitioner; or
(ii)all parties to the action agree; or
(iii)the Court is of the opinion that the party would be unfairly disadvantaged if not represented by a legal practitioner;
(ab)   however, the Court may, in its discretion, permit representation of a party by a legal practitioner at the hearing of an interlocutory application;
(b)     if a party to the action is a body corporate, the Court must, if the party seeks to be represented by an officer or employee who is not a legal practitioner, permit such representation;
(c)     if a person is subrogated to the rights of a party, the Court will permit that person to appear in the proceedings on behalf of that party and to be represented in the same way as if that person were a party;
(d)     the Court will permit a party, or a person subrogated to the rights of a party, to be assisted by a person who is not a legal practitioner but only if that person is not acting for fee or reward.
(5)In a minor civil action costs for getting up the case for trial, or by way of counsel fees, will not be awarded unless all parties were represented by counsel, or the Court is of opinion that there are special circumstances justifying the award of such costs.
(6)The District Court (constituted of a single Judge) may, on the application of a party dissatisfied with a judgment given in a minor civil action, review the matter.
(7)The following provisions apply to such a review by the District Court:
(a)     the right of a party to be represented by a legal practitioner at the review will be determined in accordance with subsection (4);
(b)     the Court may inform itself as it thinks fit and, in doing so, is not bound by the rules of evidence;
(c)     the Court may, if it thinks fit, re-hear evidence taken before the Magistrates Court;
(d)     in determining the matter, the Court may—
(i)affirm the judgment; or
(ii)rescind the judgment and substitute a judgment that the Court considers appropriate; or
(iii)if the review arises from a default judgment or summary judgment, rescind the judgment and—
(A)substitute a judgment that the Court considers appropriate; or
(B)remit the matter to the Magistrates Court for hearing or further hearing;
(e)     in hearing and determining the review, the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(8)A decision of the District Court on a review is final and not subject to appeal.
(9)However, the District Court may reserve a question of law arising in a review for determination by the Full Court of the Supreme Court which may determine the question and make any consequential orders or directions appropriate to the circumstances of the case.
In Harradine v District Court of South Australia,[1] Blue J detailed the legislative history of the minor civil action, and explained that the role of the court is that of an inquiry by the Magistrate rather than that of managing an adversarial contest between the parties. The clear policy of the Act is to provide an efficient and economical means by which small claims can be determined in the Magistrates Court. His Honour noted that Parliament had devised this system in consequence of the increasing costs of litigation. Accordingly, some of the protections provided by legal practice in the general jurisdiction ‘may be sacrificed to the necessity of relating the cost to the amount of the claim’ in a minor civil action.[2]
[1]. [2012] SASC 96.
[2] Ibid, at [40]-[49].
The hearing of the review
At the hearing of the review, the applicant appeared for herself and the respondents for themselves. Each of the parties were sworn and gave evidence about each of the applicant’s complaints in relation to the applicant’s claim, and evidence in relation to the respondents’ counterclaim.
As to the exhibits received at the trial before the learned Magistrate, I received each of those exhibits assigning them a different exhibit number for the purposes of the review. In these reasons where I refer to a particular exhibit, I use the exhibit number assigned to that exhibit in the course of the review but footnote the exhibit number in the Magistrates Court.
Nuisance
In general terms, nuisance is the interference with enjoyment of land by the occupier. It covers a number of different interferences including noise or other things that may cause an inconvenience.[3] In their text “Law of Torts”, Balkin and Davis describe the tort of private nuisance in the following terms:[4]
A person, then, may be said to have committed the tort of private nuisance when he or she is held to be responsible for an act indirectly causing physical injury to land or substantially interfering with the use or enjoyment of land or of an interest in land, where, in the light of all the surrounding circumstances, this injury or interference is held to be unreasonable.
[3] Balkin and Davis, Law of Torts (5^th ed), [14.1].
[4] Ibid, [14.5].
As to what constitutes a substantial interference with enjoyment of land, in Painter v Reed,[5] Richards J identified the general principle as that stated in McKenzie v Powley[6] in the following terms:[7]
The plaintiff is entitled to be protected in the enjoyment of his dwelling-house against an annoyance or disturbances caused by other persons which materially interfere with the ordinary comfort of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain, sober and simple notions obtaining among reasonable English people Walter v Selfe (1851) 4 DeG. & SM 315.
[5] [1930] SASR 295.
[6] [1916] SALR 1, 13-14.
[7] Painter v Reed [1930] SASR 295, 301-302.
The learned Magistrate referred to the judgment of Preston CJ in Robson v Leischke[8] where his Honour noted that:
Private nuisance involves balancing, on one hand, the right of one owner or occupier of land to do what he or she likes on their land with, on the other hand, a right of a neighbour not to have his or her use or enjoyment of their property interfered with: Sedleigh-Denfield v O’Callaghan. The tipping point in the balance is where the consequences of the use by the first person of his or her land unduly interferes, in ways recognised by the law as constituting a nuisance, with the use and enjoyment by the neighbour of his or her property. Three kinds of interference are recognised by the law as constituting a nuisance:
a)   causing encroachment on the neighbour’s land, short of trespass;
b)   causing physical damage to the neighbour’s land or any building, works or vegetation on it; and
c)   unduly interfering with a neighbour in the comfortable and convenient enjoyment of his or her land.
(citations omitted)
[8] [2008] NSWLEC 152, [54].
As to the third type of interference, the learned Magistrate cited from Preston CJ’s judgment:[9]
Nuisances of this third kind will generally arise from something emanating from the defendant’s land: Hunter v Canary Wharf Ltd [1997] AC 655 at 685. Examples of such emanations are:
a) noise (egs Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683 at 697-702; [1961] 2 All ER 145; Vincent v Peacock [1973] 1 NSWLR 466 and Cohen v City of Perth [2000] WASC 306; (2000) 112 LGERA 234);
b) …”
[9] Ibid, at [85].
The subpoenaed documents
Ms Diamandi prepared a schedule from the subpoenaed documents setting out the results of Council inspections and police attendance at their residence in response to complaints by the applicant. It is that schedule which is exhibit R6[10] in this review and Annexure A to the learned Magistrates reasons.
[10] Exhibit D4 in the Magistrates Court.
The applicant’s claim
The applicant claims in nuisance on four separate grounds, namely:
1The respondent’s two children, aged five and six years, make noise;
2The respondents own a cockatoo which screeches;
3The respondents own two dogs, a Golden Retriever and a Silky/Fox Terrier, which bark;
4Mr Diamandi whistles whilst he is outside and plays loud music on a radio.
At the hearing of the review, the applicant alleged further conduct on the part of Mr Diamandi which she described as inappropriate behaviour. The applicant agreed that she did not raise that matter before the learned Magistrate. The respondents had no notice of that allegation. Although I indicated that I would not consider it under those circumstances, nonetheless during the course of the review the applicant gave evidence about that matter, and I will deal with it accordingly.
Each of the grounds of alleged nuisance were dealt with by inviting the applicant to give her evidence on each ground and then the respondents to give evidence in response.
I received two further exhibits during the course of the review. Exhibit A11 is a USB tendered by the applicant comprising 56 separate video clips said to record loud noises coming from the respondent’s premises as well as a confrontation between the parties. Exhibit R12 is a USB tendered by the respondent comprising eight video clips extracted from the memory of a CCTV camera installed by the respondents at their premises.
The children
The applicant said she moved into the premises in November 2018. As from the time she moved in, after 3pm, the children yell and scream when they are playing in the garden. She said that sometimes the children would be told off by their parents (the respondents), and that the children would cry.
The respondents gave evidence that the children play on a trampoline in their backyard. Further they play outside the house after school and are in bed by 8pm. They act as one might expect of any five and six year old child.
The appellant complained to the Council about the noise the children were making. Investigations by the Council included installing a camera and microphone at the respondents’ house with their consent, but without them knowing when it was installed. The camera and microphone were installed between 15 January 2019 and 17 January 2019, and in the Council’s view, revealed no cause for complaint in relation to noise generated by the children.
I viewed each of the video clips in exhibit A11. It is certainly the case that on some of the video clips, the children can be heard playing and on occasions crying, having been told off by their parents. I do not consider the noise generated by the children, and their parents when disciplining the children, to be excessive and anything other than what one might expect from a family home with young children in a suburban neighbourhood.
I do not consider that the noise made by the children playing in the garden or their parents in disciplining them amounts to such an inconvenience or an unreasonable interference in the comfortable and convenient enjoyment of the applicant’s land, such as to amount to a nuisance.
The cockatoo
On some of the video clips in exhibit A11, the cockatoo can be heard screeching in the background. The respondents said in evidence that the cockatoo is on the opposite side of the house to that which the applicant lives. I note the applicant complained to the Council about the noise the cockatoo was making. Investigations by the Council, which I have set out above, are summarised in an internal email from Prospect Council’s Mr Smith, to other officers of the Council. The report revealed no cause for complaint. I do not consider the noise generated by the cockatoo to be excessive.
I do not consider that the noise made by the cockatoo amounts to such an inconvenience or an unreasonable interference in the comfortable and convenient enjoyment of the applicant’s land, such as to amount to a nuisance.
Dogs Barking
The applicant gave evidence that the dogs bark over short periods of time, but every day and at any time of the day and night.
The respondents gave evidence that the dogs bark when they return home and when the doorbell rings. They said that the dogs do not bark constantly and persistently.
On some of the video clips in exhibit A11, the dogs can be heard barking in the background. I do not consider the noise generated by the dogs to be excessive. I note the applicant complained to the Council about the noise the dogs were making. Investigations by the Council, as I have detailed above, revealed no cause for complaint. Further, by letter dated 20 May 2019, the Council advised the applicant that sufficient evidence had not been obtained to proceed in relation to the applicant’s complaint of excessive barking by the dogs.[11]
[11] Exhibit A3 (Magistrates Court Exhibit P3).
I do not consider that the noise made by the dogs amounts to such an inconvenience or an unreasonable interference in the comfortable and convenient enjoyment of the applicant’s land, such as to amount to a nuisance.
Whistling and loud music

The applicant asserted that Mr Diamandi whistles when he is in the garden, uses offensive language towards her and plays loud music from a radio which is located outside in the back garden.
Mr Diamandi accepted that he whistles when he is working in the garden whether that be to himself or to the cockatoo or the dogs. He said in evidence that he spends a lot of time in the garden with tomatoes and fruit trees. He said further that both he and his wife work full-time and that during the week the radio is on until about 7:30pm. On the weekends, when he is working in the garden, the radio is on. He said that the applicant plays music loudly between 10:00pm to 11:30pm. The applicant denied that allegation.
On some of the video clips in exhibit A11 music can be heard in the background, and on occasion whistling can be heard. I do not consider the noise generated by the music or whistling to be excessive.
I do not consider that the music from the radio or Mr Diamandi’s whistling amounts to such an inconvenience or an unreasonable interference in the comfortable and convenient enjoyment of the applicant’s land, such as to amount to a nuisance.
As to the allegation, newly raised by the applicant, that Mr Diamandi uses offensive language towards her, that may be so but I do not find that it constant or of such frequency that it amounts to such an inconvenience or an unreasonable interference in the comfortable and convenient enjoyment of the applicant’s land, such as to amount to a nuisance.
Finally, the applicant complains that the respondents installed a CCTV system which captures the back of the applicant’s house and the kitchen sliding door. Exhibit R9[12] is a still photograph from the CCTV camera in question. It clearly does not capture the applicant’s backyard or sliding door to the kitchen. I find it does not constitute a nuisance.
[12] Magistrates Court Exhibit D7.
Conclusion- applicant’s claim
The activities of the respondents, their children and pets including those which the applicant made complaints to both the Council and to the police, were no more than the ordinary activities of a young family living in a suburban environment.
I have considered each of the grounds of review put forward by the applicant. I find that none of the applicant’s grounds of review are made out.
I affirm the learned Magistrate’s decision in dismissing the applicant’s claim.
Counterclaim
The respondents’ counterclaim is directed at what they allege is harassment.
The documents produced on subpoena reveal reports by the applicant to the police, in relation to the alleged conduct of the respondents as between themselves, in relation to their children, from Mr Diamandi alone, and of the respondents together towards the applicant. The complaints included an allegation that the respondents threatened to kill the applicant.[13]
[13] See for example exhibit R6 dated 16 October 2018, 25 November 2018, 25 December 2018, 15 March 2019, 18 April 2019 – Magistrates Court Exhibit D4.
The respondents gave evidence that from the time the applicant moved in she told them that she did not want to hear the children and would call the police. The applicant caused the police to attend at the respondents’ premises, including on Christmas day 2018, and no less than 15 times during the period 12 October 2018 – 18 April 2019. The complaints are set out conveniently in the summary exhibit R6.[14]
[14] Magistrates Court Exhibit D4.
Those complaints include complaints about loud music, loud talking, children playing loudly,[15] allegations of domestic abuse,[16] an allegation that Mr Diamandi threatened to kill the applicant,[17] and loud talking on Christmas day resulting in the police attending on six occasions on between Christmas day and 26 December 2018.[18] On no occasion did a police attendance result in action being taken by the police against the respondents.
[15] Exhibit R6, dated 12 October 2018.
[16] Exhibit R6, dated 13 October 2018, 16 October 2018.
[17] Exhibit R6, dated 25 November 2018.
[18] Exhibit R6, dated 25 and 26 December 2018
The respondents gave evidence of the embarrassment they have endured by having the police attend their house on numerous occasions. Ms Diamandi gave evidence as to the effect the applicant’s actions have had on her. Those effects include being in a constant state of anxiety, suffering from headaches and not sleeping. She said in evidence that every time the doorbell rings she wonders what the issue will then be. Her anxiety is heightened by the prospect of the police attending and the associated embarrassment she feels when that occurs. On one occasion the police attended to do a welfare check on her children. She became emotional in describing the humiliation she felt with the police enquiring as to the welfare of the respondents’ children. She describes the experience with the applicant as “a nightmare”.
The respondents gave evidence that they have spent money to install security cameras, put up a front fence, and put up a side fence at the front of their house between their house and the applicant’s, to keep the applicant off their property.
The applicant asserted it was not true that she called police for no reason and that the fact that no action was taken by the police does not mean that the report was false. She accepted that the police attended and heard music, the noise of children playing and dogs barking, but that they considered it was not an issue.
I do not accept the applicants evidence that she called police for no reason. For reasons unknown, in my view, the applicant has set about a campaign against the respondents in relation to any noise emanating from their property. I accept, and I have no doubt, that the respondents have been subjected to behaviour on the part of the applicant which has had a significant impact on their lives.
The learned Magistrate observed that the complaints to police concerning domestic abuse and accusing Mr Diamandi of threatening to kill the applicant, amounted to defamatory statements made on occasion of qualified privilege. He continued that the counterclaim did not raise this cause of action and he did not explore it during the hearing.[19] The question of whether the statements were defamatory or not was not explored during the review either.
[19] Magistrate Reasons for Judgment, [31].
During the review of a minor civil action, the Court may inform itself as it thinks fit, and in so doing, is not bound by the rules of evidence.[20] Nonetheless, a great deal more of material would have to be produced by both parties in order to determine the question of defamation, and the only parties that attended the review were the parties themselves. On the material before me, I am not prepared to proceed on the basis that the applicant’s complaints to the police and/or the Council were defamatory. That however, does not mean that I consider the applicants complaints to the police and/or the Council were in any way justified.
[20] Magistrates Court Act 1991, s38(7)(b).
His Honour considered that the applicant’s behaviour in using the property she rents as a base from which to observe the respondents and harass them by making unfounded calls to Council and false reports to police, amounted to an actionable nuisance sounding in damages,[21] relying on the observations of Preston CJ in Robson v Leischke.[22]
[21] Magistrate Reasons for Judgment, [32].
[22] Robson v Leischke [2008] NSWLEC 152.
In Stoakes v Brydges,[23] the Supreme Court of Queensland held that the defendants’ actions in telephoning the plaintiffs late at night interfered with the plaintiffs' ordinary use of their dwellings for sleep and rest, and constituted a nuisance. It is certainly the case that the courts have granted injunctions to prevent telephone harassment of public figures.
[23] [1958] QWN 5.
In this matter however, the interference with the respondents enjoyment of their property does not emanate from the applicant’s property but rather from the applicant’s conduct.
Further, even if the applicants conduct did give rise to a cause of action in nuisance, it is quite another matter for the actions of the applicant in the context of this matter, to sound in damages.
The learned Magistrate correctly observed that damages for mental distress can be awarded in some circumstances.[24]
[24] Magistrate Reasons for Judgment, [40].
Balkin and Davis[25] observe that there is authority that a plaintiff may recover damages for personal injury which flows from the invasion of the proprietary interest in land citing Pelmothe v Phillips.[26] In that case, the Full Court of New South Wales held that nervous shock affecting the plaintiff’s health was a reasonable natural consequence of the activities of the defendant’s blasting operations, carried out on the defendant’s property and as such was compensable in an action in nuisance.[27] That however is not in any way similar to the case here.
[25] Balkin and Davis, Law of Torts (5^th ed), [14.34].
[26] [1899] 20 L R (NSW) (L) 58 (FC).
[27] Ibid.
Although I am prepared to accept the learned Magistrate’s conclusion that the applicant’s harassment of the respondents has been relentless,[28] the learned Magistrate erred in finding that the conduct of the applicant in making complaints to the Council and to the police about the conduct of the respondents and their children, amounted to an actionable nuisance sounding in damages.
[28] Magistrate Reasons for Judgment, [44].
Accordingly I rescind the judgment of the learned Magistrate on the counterclaim and dismiss the counterclaim.
Costs
Pursuant to s 38(5) of the Magistrates Court Act, costs will not be awarded in a minor civil action for getting up the case for trial or by way of counsel fees, unless all parties were represented by counsel or the court is of the opinion that there are special circumstances justifying the award of such costs.
The actions of the applicant in bringing these proceedings were, in my view, completely unjustified. I consider there are special circumstances justifying an award of costs against the applicant which I fix in the sum of $500.
Orders
The formal orders of the court are:
1The judgment of the learned Magistrate in dismissing the applicant’s claim is affirmed;
2The judgment of the learned Magistrate on the respondents counterclaim awarding damages to the respondents for nuisance in the sum of $11,037.05 is rescinded and in substitution thereof the respondents counterclaim is dismissed;
3The applicant is to pay the respondents costs, of and incidental to these proceedings, fixed in the sum of $500 to be paid within 28 days of the date these reasons are published.