Parolo & Anor v Widdup & Anor (Civil Dispute)
[2022] ACAT 103
•1 December 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
PAROLO & ANOR v WIDDUP & ANOR (Civil Dispute) [2022] ACAT 103
XD 226/2022
Catchwords: CIVIL DISPUTE – nuisance application – application for removal of a tree on an adjoining neighbour’s land – consideration of Tribunal’s jurisdiction in response to a nuisance application – whether Tribunal has power to grant non-monetary relief – if so, whether power to grant non-monetary relief is an ancillary power exercisable where there is a claim for damages of less than $25,000 – whether $25,000 jurisdictional limit applies to an application for non-monetary relief for nuisance – Tribunal has power to make non-monetary orders – the power is not ancillary to a claim for damages – the jurisdictional limit does not apply to the grant of non-monetary relief for nuisance
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 15, 16, 17, 18, 19, 20, 21, 22, 88
Magistrates Court Act 1930 ss 257, 258, 260, 261
Subordinate
Legislation cited: Court Procedures Rules 2006 r 5072
Cases cited:Abbey v Mack [2010] ACTSC 140
Blackshaw & Evans v Campbell (No. 2) [2016] ACAT 108
Campbell v Blackshaw & Evans [2017] ACAT 64
Campbell v Blackshaw [2018] ACTSC 39
Campbell v Blackshaw [2019] ACTCA 1
Lewis v Australian Capital Territory [2020] HCA 26
Macleod v Australian Securities and Investments Commission [2002] HCA 37
R v Moodie; Ex parte Mithen (1977) 17 ALR 219
Tipsy Bull Pty Ltd v Foundry Enterprises Pty Ltd trading as Hopscotch Bar [2019] ACAT 51
Vorkapic v Plunkett [2022] ACAT 74
Young v Hammond [2012] ACAT 30
List of
Texts/Papers cited: Butterworths Legal Dictionary (1997)
Pearce, Administrative Appeals Tribunal (LexisNexis Butterworths 4th ed 2015)
Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths 9th ed 2019)
Tribunal:Presidential Member G McCarthy
Date of Orders: 1 December 2022
Date of Reasons for Decision: 1 December 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 226/2022
BETWEEN:
PAUL RAYMOND PAROLO
First Applicant
ANNABEL PAROLO
Second Applicant
AND:
JULIAN WIDDUP
First Respondent
CECILIA WIDDUP
Second Respondent
TRIBUNAL:Presidential Member G McCarthy
DATE: 1 December 2022
ORDER
The Tribunal orders that:
The amended application is listed for directions on Thursday, 15 December 2022 at 10:00am. The directions hearing will be conducted in person.
………………………………..
Presidential Member G McCarthy
REASONS FOR DECISION
The applicants have brought a claim in nuisance against their neighbours, the respondents, alleging that a large gum tree growing on the respondents’ land creates a substantial and unreasonable interference to the applicants’ enjoyment of their land. In particular, the applicants claim there is an unreasonable risk that a large branch or branches of the tree will fall on their house and cause substantial damage to the house and, potentially, injure occupants in the house.
In their original application, the applicants claimed an amount of $22,000 to cover the cost of removing the tree.
On 10 August 2022, the Tribunal made orders regarding the filing and service of submissions and evidence in advance of the hearing. It also ordered the applicants to file and serve by 4 October 2022 an amended application in relation to the removal of the tree and the ongoing management of the tree that was “within the tribunal’s jurisdictional limit or clearly stating any excess”.
On 4 October 2022, the first applicant (Mr Parolo) filed an amended application naming only himself as the applicant and only the first respondent (Mr Widdup) as the respondent. Pursuant to the amended application, the first applicant seeks an order that the first respondent remove the tree at his own expense. The amended application makes no claim for any money. In his amended application, Mr Parolo refers to his witness statement dated 30 August 2022 to which he attaches (as enclosures 7 and 8) two quotes for the cost of removing the tree. The first is for $27,500. The second is for $29,839.
On 10 October 2022, the respondents filed an application for interim or other orders. In their application, in response to the first applicant’s amended application, the respondents sought an order that the substantive hearing of the applicants’ claim in nuisance (listed for 18 October 2022) be vacated and that the Tribunal instead (on that date) consider only the following matters:
(a)Mr Parolo’s “proposal to remove unilaterally the second applicant”.
(b)Mr Parolo’s “proposal to remove unilaterally the second respondent”.
(c)Whether Mr Parolo’s claim “is within ACAT’s jurisdiction”.
(d)A revised hearing date, if the dispute is determined to be “within ACAT’s jurisdiction”.
Where the question of jurisdiction needed to be determined as a preliminary issue, I vacated the substantive hearing and heard only the respondents’ interim application.
The parties
The respondents were concerned that the purported removal of the second applicant (Ms Parolo) might enable the second applicant to prosecute them separately for a “substantially similar action” if the Tribunal did not rule in favour of the first applicant.
The respondents submitted that the second respondent is a joint owner of their property and is therefore “an interested party to the proceedings”. She therefore wishes to defend her “interest in the matter”.
Regarding the purported removal of the second applicant, Mr Parolo explained that for personal reasons Ms Parolo does not wish to be involved in the proceeding. He thought it therefore “appropriate” that she be removed as an applicant.[1] However, he did not object to her remaining as an applicant in the proceeding.
[1] Transcript of proceedings, 18 October 2022, page 5, lines 8-12
Ms Parolo has not said or written anything about whether she wishes to continue as an applicant. I was therefore disinclined to remove her as an applicant in the absence of any representation from her. At the hearing on 18 October 2022, I also noted that if Ms Parolo chooses not to participate in the proceeding she will have to accept whatever orders are made in her absence and would be bound by those orders. Mr Widdup agreed this approach addressed his concern.[2]
[2] Transcript of proceedings, 18 October 2022, page 6, lines 6-15
The fact that Ms Parolo is not named as the second applicant to the amended application does not make it so. Where I am not prepared, at this stage, to remove her as an applicant, the first applicant must file a further amended application naming Annabel Parolo as the second applicant to regularise the claim.
Regarding removal of the second respondent, Mr Parolo accepted that his not naming her as a respondent to his amended application does not make it so. He agreed that she is and should continue as a respondent.[3] Again, therefore, the first applicant must file a further amended application naming Cecilia Widdup as the second respondent to regularise the claim.
The Tribunal’s jurisdiction in nuisance
[3] Transcript of proceedings, 18 October 2022, page 4, lines 6-28
Arising from the amended application, the first applicant submitted there are two issues to be determined. First, whether the Tribunal can order removal of the tree. Second, if so, how should the cost of the removal be “shared between the parties if at all”.[4]
[4] Transcript of proceedings, 18 October 2022, page 8, lines 9-10
On the first question, the respondents submitted that the Tribunal does not have jurisdiction “because the financial imposition or the costs associated with the removal of the tree exceeds $25,000”.[5] They accepted the Tribunal would have jurisdiction to hear the claim if the cost of removing the tree was $25,000 or less,[6] but there is no suggestion that the cost would be that sum or less.
[5] Transcript of proceedings, 18 October 2022, page 8, lines 12-14
[6] Transcript of proceedings, 18 October 2022, page 11, lines 19-23
To meet the respondents’ objection to jurisdiction, the first applicant offered to contribute $2,500 towards the cost of removing the tree on condition that the cheaper of the two quotes would be applied so that the cost to the respondents does not exceed $25,000.
The respondents submitted that the first applicant’s offer does not make any difference. The cost of the relief sought (i.e. removing the tree) is still greater than $25,000 with the result that the Tribunal does not have jurisdiction, they said, to order its removal.
To address this submission, at the close of the interim hearing on 18 October 2022, the first applicant posed the prospect of amending his claim to require, instead, remediation work to remove the risks that the tree presents to the applicants’ property. He contended this work could be done at a cost less than $25,000, although he agreed he does not presently have any evidence regarding appropriate remediation work or the cost of such work.
The respondents said this was the first time they had heard mention of remediation work, rather than removal of the tree, and were in no position to meet the proposal. Also, they said, remedial work has already been done and the tree does not now present a risk to the applicants.
Consideration
The questions posed are whether the Tribunal has jurisdiction to hear the applicants’ claim and, if so, whether it has power to order the respondents to remove the tree. For the following reasons, I am satisfied it has jurisdiction to hear the claim and may grant the relief sought. Its jurisdiction to order removal of the tree is not limited by the cost of compliance.
I begin by noting the relevant provisions of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act).
Section 17 of the ACAT Act states:
17 Civil dispute applications
A person may make a civil dispute application to the tribunal.
A “civil dispute application” is defined in section 16 of the ACAT Act to mean one or more of the ten kinds of applications listed in that section. The applications include “a nuisance application”.[7]
[7] ACT Civil and Administrative Tribunal Act 2008, section 16(1)(e)
A “nuisance application” is defined in section 15 as follows:
nuisance application means an application for relief for nuisance.
“Nuisance” should be understood as a reference to the tort of nuisance.
Section 18 of the ACAT Act states:
18 $25 000 limit on civil dispute applications
(1)A civil dispute application cannot be made to the tribunal for an amount greater than the tribunal’s jurisdictional limit, unless section 20 (Abandoning excess to come within jurisdiction) or section 21 (Jurisdiction by agreement—amounts over $25 000) allows the application to be made.
(2)The tribunal’s jurisdiction is limited to—
(a)civil dispute applications claiming amounts of not more than $25 000; or
(b)in relation to debt declarations—applications for declarations for debts of not more than $25 000.
NoteFor working out an amount to decide whether the tribunal has jurisdiction—see s 19.
(3)This section does not apply to—
(a)an application for a common boundaries determination; or
(b)an application prescribed by regulation.
Section 19(1) of the ACAT Act deals with amounts that are to be disregarded when working out the amount claimed or the amount to be declared as a debt, to decide whether the Tribunal has jurisdiction in relation to a civil dispute application. Section 19(2) deals with amounts to be considered when working out whether the Tribunal has jurisdiction in relation to a goods application. Section 19 states:
19 Working out amount of application for jurisdiction
(1)In working out the amount claimed, or the amount sought to be declared as a debt, to decide whether the tribunal has jurisdiction in relation to a civil dispute application, the following amounts for the application are to be disregarded:
(a)a claim for interest;
(b)a claim for a lump sum instead of interest.
(2)In working out the amount claimed, to decide whether the tribunal has jurisdiction in relation to a goods application, the following amounts are to be considered:
(a)the value of the goods or services;
(b)any amount claimed for damages for the detention of the goods.
In cases where a person is entitled to make a claim in a court for an amount greater than $25,000, section 20 permits the person to make a civil dispute application to the Tribunal if they abandon the excess by limiting the claim to $25,000. Section 21 permits the Tribunal to determine a civil dispute application by agreement for an amount greater than $25,000. Sections 20 and 21 are not relevant in this case.
Section 22 provides that the Tribunal has, in relation to a civil dispute application, the same jurisdiction and powers as the Magistrates Court. Section 22 states:
22 Tribunal jurisdiction and powers of Magistrates Court
(1)The tribunal has, in relation to civil dispute applications, the same jurisdiction and powers as the Magistrates Court has under the Magistrates Court Act 1930, part 4.2 (Civil jurisdiction).
(2)However, a rule may prescribe provisions of the Magistrates Court Act 1930, part 4.2 that do not apply in relation to the tribunal.
NoteThe Magistrates Court Act 1930, pt 4.2 deals with the civil jurisdiction of the Magistrates Court, including that the Magistrates Court—
(a)may hear and decide any personal action at law, including an action relating to the detention of goods, subject to a monetary limit (see s 257); and
(b)may grant any relief, redress or remedy and must give effect to any defence, counterclaim or set-off in the same way as the Supreme Court (see s 258); and
(c)does not have jurisdiction to hear and decide a proceeding questioning title to land (unless incidental in the proceeding) (see s 264).
The Magistrates Court Act1930 (the Magistrates Court Act) contains section 260 which deals with claims in nuisance. Section 260 states:
260 Nuisance
(1)The Magistrates Court has the same jurisdiction as the Supreme Court to hear and decide a civil action for nuisance.
(2)In a civil action for nuisance, the Magistrates Court may grant the same relief as the Supreme Court may grant in a similar action in that court.
Referring to section 22(2) of the ACAT Act, no rule has been made prescribing any provision of the Magistrates Court Act that does not apply in relation to the Tribunal.
By operation of section 22 of the ACAT Act and section 260 of the Magistrates Court Act, the Tribunal “has the same jurisdiction as the Supreme Court to hear and decide a civil action for nuisance” and “may grant the same relief as the Supreme Court may grant”.
The question arising in this case is whether the Tribunal’s power under section 22 of the ACAT Act is limited by section 18 of the ACAT Act. The respondents submitted that because the cost of removing the tree exceeds the Tribunal’s $25,000 jurisdictional limit stated in section 18, the Tribunal cannot hear and determine the applicants’ claim.
The Tribunal is a subordinate body created under statute, namely section 88 of the ACAT Act. It may hear claims and make orders only to the extent it is empowered under statute to do so.[8] The Tribunal has a role and obligation to be satisfied that it has jurisdiction to hear a claim and power to make the orders it proposes to make in response to the claim. Parties cannot agree to the Tribunal exercising jurisdiction it does not have.[9] The Tribunal must “reach its own independent conclusion on the issue”.[10]
[8] Macleod v Australian Securities and Investments Commission [2002] HCA 37 at [44] and [61]
[9] R v Moodie; Ex parte Mithen (1977) 17 ALR 219 at 225, the High Court held: “… what the Tribunal must do is to give its own decision accompanied by its own reasons for its findings. It would not, on this view, be open to the Tribunal to make an order by consent of the authorized person and the applicant. Its functions can only be discharged by giving its own decision….”
[10] Dennis Pearce, Administrative Appeals Tribunal (fourth edition) 2015 at [3.6]
These principles and the respondents’ submissions obliged me to consider the ambit of the Tribunal’s jurisdiction to hear and determine a nuisance application and the orders it may make in response to such an application.
The Tribunal’s jurisdiction in nuisance was considered in a sequence of decisions arising from a dispute between neighbours regarding nine cypress pine trees growing on or near the boundary between the respective neighbours’ properties. These decisions were made by the Tribunal at first instance,[11] on appeal by the Appeal Tribunal,[12] on further appeal by the ACT Supreme Court[13] and on further appeal by the ACT Court of Appeal.[14] The issues arising were materially similar to the issues in this case.
[11] Blackshaw & Evans v Campbell (No. 2) [2016] ACAT 108
[12] Campbell v Blackshaw & Evans [2017] ACAT 64
[13] Campbell v Blackshaw [2018] ACTSC 39
[14] Campbell v Blackshaw [2019] ACTCA 1
The adjoining neighbours (Adam Blackshaw and Robyn Evans) made an application to the Tribunal alleging that the nine trees growing on their neighbour’s land constituted an actionable nuisance. They alleged the trees encroached onto their land, unreasonably overshadowed their land and were causing actual or imminent property damage. They sought an order that their neighbour (Maryanne Campbell) remove the trees.
At first instance, the Tribunal found the trees constituted an actionable nuisance and ordered Ms Campbell to remove them. The Appeal Tribunal dismissed Ms Campbell’s appeal against that decision.
Before the original Tribunal and on appeal to the Appeal Tribunal, there was no suggestion the Tribunal lacked jurisdiction to order removal of the trees. The issue never arose. Also, in that case like this case, Mr Blackshaw and Ms Evans did not seek money. They sought an injunction, meaning a non-monetary order that Ms Campbell remove the trees in order to remedy the nuisance.[15]
[15] Blackshaw & Evans v Campbell (No. 2) [2016] ACAT 108 at [48]
Ms Campbell had a right to seek leave to appeal from the decision of the Appeal Tribunal to the Supreme Court. However, pursuant to the Court Procedures Rules 2006, rule 5072, her application for leave needed to be brought within 28 days of the Appeal Tribunal’s decision or not later than any further time allowed by the Court. Ms Campbell did not apply for leave within the 28 days and so applied for an extension of time within which to apply.
One of the issues the Court needed to consider, when deciding whether to grant an extension of time, was the merits of the proposed appeal. Ms Campbell wished to appeal on five grounds, the first of which was that the Appeal Tribunal (and the original Tribunal at first instance) erred in law by ordering her to remove the trees because (she said) it did not have power to make that order. She submitted, with reliance on section 18 of the ACAT Act, that the Tribunal’s jurisdiction is limited to claims for damages where the amount claimed does not exceed $25,000.[16] She submitted the Tribunal’s jurisdiction does not include or extend to the granting of injunctive relief, as a kind of non-monetary order, meaning (in that case) an order that she remove the trees.
[16] Campbell v Blackshaw [2018] ACTSC 39 at [20]
In response to this submission, the Supreme Court, per Justice Mossop, stated:
27. There is an arguable case that the terms of s 18 are such that, in the absence of regulations expressly removing the limitation upon the jurisdiction, the jurisdiction of the ACAT does not extend to the granting of injunctive relief. There are, however, arguments to the contrary arising from the terms of the definition of “nuisance application” and the relationship between ss 18 and 22. Depending upon the interpretation of s 22 adopted it may be that:
(a)the ACAT had no power to make any order other than a monetary one;
(b)the ACAT could make ancillary orders so long as the initial application claimed damages of less than $25,000; or
(c)the limitation did not apply when non-monetary relief was sought in an application for relief from nuisance.
28. The issue is similar to that in Abbey v Mack [2010] ACTSC 140; 244 FLR 324, but that case is not determinative of the current issue.
29. I accept that the applicant’s contention is arguable. It is not a matter which was raised at either level below. Although it would be fatal to the proceedings if the first interpretation above was adopted, if the second interpretation above was adopted and the matter had been raised, it would have been open to the respondents to amend their application so as to make a formal claim for damages in an amount of less than $25,000 in order to enliven the jurisdiction of the ACAT. If that was the case, then that fact would tell against a grant of leave to appeal. It is not a case like Abbey v Mack where it was uncontroversial that the monetary limit, if it applied, was clearly exceeded: see Abbey v Mack at [2].
Although acknowledging the first proposed ground of appeal was arguable, Justice Mossop decided there was limited utility in granting Ms Campbell an extension of time within which to apply for leave to appeal because Mr Blackshaw and Ms Evans already had an entitlement to trim the trees to the extent they overhanged their property and because the extent of the trimming was likely to kill the trees.[17] Also, one and probably two of the trees already needed to be removed in order to construct a boundary fence.[18] Consequentially, his Honour found the first ground of appeal did not need to be decided. Justice Mossop found none of the other proposed grounds of appeal provided an appropriate basis for the grant of leave to appeal and so dismissed the application for leave to appeal.
[17] Campbell v Blackshaw [2018] ACTSC 39 at [56]
[18] Campbell v Blackshaw [2018] ACTSC 39 at [57]
Ms Campbell appealed to the Court of Appeal. The first ground of appeal was that Justice Mossop “fell into error by failing to give adequate weight to the public interest in clarifying whether section 260 of the Magistrates Court Act confers jurisdiction to issue injunctive relief on both the ACT Magistrates Court and ACAT”.[19] In response to this ground, the Court of Appeal found “no error in the primary judge’s approach”.[20] It also found no error in Justice Mossop’s response to any of the other grounds of appeal, and therefore dismissed the appeal.
[19] Campbell v Blackshaw [2019] ACTCA 1 at [4]
[20] Campbell v Blackshaw [2019] ACTCA 1 at [30]
As best I can ascertain, which of Justice Mossop’s three interpretations of the effect of section 22 of the ACAT Act should be preferred “remains undecided”[21] but it needs to be decided in this case.
[21] Tipsy Bull Pty Ltd v Foundry Enterprises Pty Ltd trading as Hopscotch Bar [2019] ACAT 51 at [41]
In my view, the first interpretation should be rejected.
A civil dispute application is defined in section 16 of the ACAT Act to mean one or more of the ten different kinds of applications stated in the section. Eight of them are defined in section 15 which states:
15 Definitions—pt 4
In this part:
common boundaries determination means a determination under the Common Boundaries Act 1981, and includes a variation of a determination.
contract application means an application in relation to a contract, and includes an application for damages for breach of contract.
damages application means an application for damages for negligence or for any other tort except nuisance or trespass.
debt application means an application for the recovery of a debt.
debt declaration, in relation to an application, means an order declaring that—
(a)the applicant is or is not indebted to the respondent; or
(b)the applicant is or is not indebted to the respondent for a stated amount; or
(c)the applicant is or is not indebted to the respondent for an amount that is more than a stated amount.
goods application means an application in relation to the provision of goods or services, and includes an application for damages for the detention, or return, of goods.
nuisance application means an application for relief for nuisance.
trespass application means an application for relief for trespass to land.
Several aspects of the Tribunal’s jurisdiction and the orders it is empowered to make can be drawn from these definitions.
First, a contract application and a goods application are defined to “mean” as described and to “include” applications for the kinds of remedies described. The words “means” and “includes” are often used in the definition of a word or phrase in legislation. Pearce, in his work, Statutory Interpretation in Australia, comments on the distinction between them as follows:
The orthodox and, it is submitted, the correct approach to the understanding of the effect of these expressions is that ‘means’ is used if the definition is intended to be exhaustive while ‘includes’ is used if it is intended to enlarge the ordinary meaning of the word.[22]
[22] Statutory Interpretation in Australia (9th edition), 2019 at [6.5]
Something ‘included’ is a stated example of the defined word or phrase without exclusion of other examples.
It follows that for a contract application, as defined, the Tribunal has power to hear and determine applications for other kinds of remedies, in addition to an application for damages for breach of contract, that are available under the law of contract. That includes an order for specific performance, meaning an order to compel a party to perform its obligations under a contract. It also includes an injunctive order, one kind of which is an order to restrain a party from acting contrary to a contract. Both are non-monetary orders. From the definition of a contract application alone, it becomes clear that the Tribunal has power to make non-monetary orders.
For a goods application, the definition expressly includes remedies in addition to damages, namely an order that the goods the subject of the application be detained or an order that the goods be removed. Both are non-monetary orders. From this definition too, it is clear the Tribunal has power to make non-monetary orders.
Second, a nuisance application is defined to “mean” an application for “relief for nuisance”. The word ‘relief’ is defined in Butterworths Australian Legal Dictionary as follows:
The remedy sought by a plaintiff in a court action. For instance, the plaintiff could ask for specific performance of the contract and in lieu of specific performance, damages. The relief available in any particular action may be limited by statute.
In Lewis v Australian Capital Territory,[23] the High Court, per Justice Gordon, commented on the kinds of “relief” that can be ordered where a cause of action is established. Her Honour said:
Relief, in the form of judicial remedies, is not one-dimensional: remedies have different origins, vary in nature and have different purposes. Some remedies seek to redress the infringement of a "right" by vindication of that "right", some seek to rectify or correct the act that gave rise to the liability, while other remedies seek to address the loss or injury suffered by awarding damages. What remedy or remedies should be awarded requires an assessment of the position of the plaintiff taken as a whole. All relief is tailored to a particular situation. And the tailoring of the relief necessarily entails that remedies are granted as a package, each remedy with its different nature and purposes, sometimes overlapping, but always working together to address the liability that has been established.[24]
[23] [2020] HCA 26
[24] Lewis v Australian Capital Territory [2020] HCA 26 at [44]
As Justice Mossop pointed out, “injunctions are the principal form of relief granted in actions for nuisance”.[25]
[25] Campbell v Blackshaw [2018] ACTSC 39 at [26]
Clearly, the Supreme Court has power to grant an injunction by way of relief in nuisance. Pursuant to section 260 of the Magistrates Court Act, so too does the Magistrates Court. Pursuant to section 22 of the ACAT Act, so too does the Tribunal.
I acknowledge that relief in any action can be limited by statute but, in my view, section 18 does not preclude the Tribunal from making non-monetary orders in response to a civil dispute application. Such an interpretation would:
(a)be inconsistent with the definitions of a contract application and a goods application;
(b)defeat the principal form of relief in actions for nuisance; and
(c)be inconsistent with the grant of power to the Tribunal under section 22 of the ACAT Act.
I turn to Justice Mossop’s second interpretation. In my view, that interpretation too should be rejected. Nothing in section 22 or any other section of the ACAT Act supports a construction that the Tribunal’s power under section 22 is ancillary to its power to make an order for damages.
It is also, in my view, artificial to construe section 22 as requiring an applicant to apply for a monetary order of $25,000 or less in order to enliven the Tribunal’s jurisdiction to make a non-monetary order. Such a construction would mean a person could make an entirely nominal claim, say $100, and then seek the true relief sought, namely a non-monetary order. Nothing in the legislation supports such a pre-condition or construction of section 22.
In rejecting the second interpretation, I considered the Tribunal’s decision in Vorkapic v Plunkett[26] which appears to support it. In that case, the Tribunal began by noting Justice Mossop’s “possible interpretations of the effect of section 22”. The Tribunal then said:
28. In this matter, I adopt His Honour’s second interpretation. Here the applicant has made an initial application claiming damages of less than $25,000 (she seeks damages of $18,000). This enlivens the jurisdiction of the ACAT. On making a nominal award for damages, the Tribunal can then make ancillary orders in the form of an injunction.
[26] Vorkapic v Plunkett [2022] ACAT 74
By way of relief, the Tribunal concluded:
Injunction and orders
30. The respondent is restrained from continuing to permit noise, vibration, smell and smoke emanating from [address redacted] or its vicinity to cause a nuisance at the applicant’s house at [address redacted] and is required to take the measures specified to abate the nuisance.
31. ...[27]
32. The Tribunal further orders the respondent to pay to the applicant the sum of $100 by way of damages and $165 in reimbursement of the ACAT filing fee, being a total of $265 by 5pm on 10 October 2022.
[27] Detailed and specific measures to abate the nuisance were listed in paragraph 31 of the decision
In my view, the decision in Vorkapic v Plunkett is not determinative of whether the second interpretation of section 22 should be preferred. No consideration was given to the question. It is also clear from the detailed description of the respondent’s conduct constituting nuisance and the detailed specific measures the respondent was required to take to remedy the nuisance that the real relief was the non-monetary orders. The $100 awarded by way of damages, in response to a claim for $18,000, was entirely nominal. In my view, the Tribunal did not intend any definitive statement that a party needs to seek damages and/or the Tribunal needs to award damages in order to grant non-monetary relief.
Where I reject the first and second interpretations of the effect of section 22, I am satisfied that Justice Mossop’s third interpretation should be preferred. It is also consistent with the ACAT Act, read as a whole. Section 22 of the ACAT Act and section 260 of the Magistrates Court Act combine to give the Tribunal the same jurisdiction and powers as the Supreme Court in relation to an action in nuisance.
I then considered the question arising in this case, namely whether a non‑monetary order in response to a nuisance application is limited or governed by the cost of compliance with the order. For several reasons, I am satisfied that it is not. The jurisdictional limit does not apply to a non-monetary order in response to a nuisance application.
First, section 17 permits a person to make “a civil dispute application”. Section 17 is written without any words of limitation. The jurisdictional limit in section 18 is directed only to stated specific circumstances, namely a claim for an amount of money, or a declaration that the respondent owes an amount of money. Section 18 prohibits either kind of application if the amount claimed or the amount of the alleged debt is greater than $25,000, subject to the further constraints and considerations set out in sections 19, 20 and 21. None of those sections refers to a non-monetary order in response to a nuisance application.
Second, in his review of the effect of section 18 on section 22, Justice Mossop did not suggest in his second or third interpretation concerning the making of a non-monetary order that the jurisdictional limit applied to the cost of compliance. To the contrary, his Honour’s third interpretation was that “the limitation did not apply” where non-monetary relief was sought in an application for relief from nuisance.
Third, the relevant provisions of the ACAT Act are materially the same as the legislation setting jurisdictional limits in the Magistrates Court, save for quantum. Sections 257-261 of the Magistrates Court Act relevantly state:
257 Personal actions at law—amount or value
(1)The Magistrates Court has jurisdiction to hear and decide any personal action at law if the amount claimed is not more than $250 000, including a personal action at law if—
(a)the amount claimed is the amount owing on a balance of account, after an admitted set-off or otherwise; or
(b)any amount in excess of $250 000 to which the plaintiff may be entitled in relation to the cause of action is abandoned in accordance with the rules.
(2)If the amount claimed in a personal action includes interest up to judgment, or a lump sum instead of interest, in accordance with the rules, the interest is disregarded in working out whether or not the court has jurisdiction.
(3)For this section, a personal action at law includes an action relating to the detention of goods, and the amount claimed in the action is the value of the goods plus any amount claimed for damages for the detention of the goods.
(4)Subsection (1) does not limit the court’s jurisdiction if, under another law in force in the ACT, an amount may be recovered by action in the court (even if the amount is more than $250 000).
258 Power of court to grant relief
(1)In any proceeding that the Magistrates Court has jurisdiction to hear and decide—
(a)the court may grant any relief, redress or remedy that the Supreme Court may grant in a similar action in that court, and for that purpose the Magistrates Court may make any order that the Supreme Court may make; and
(b)the court must give effect to any ground of defence, counterclaim or set-off, whether equitable or legal, in the same way and to the same extent that the Supreme Court would do.
(2)For the exercise by the Magistrates Court of its powers under subsection (1) in any proceeding—
(a)a magistrate constituting the court has, as well as any other powers under this Act, all the powers of a judge in a similar action in the Supreme Court; and
(b)…
260 Nuisance
(1)The Magistrates Court has the same jurisdiction as the Supreme Court to hear and decide a civil action for nuisance.
(2)In a civil action for nuisance, the Magistrates Court may grant the same relief as the Supreme Court may grant in a similar action in that court.
261 Disputed debts
(1)The Magistrates Court may, in a proceeding in the court, declare that—
(a)a person is or is not indebted to someone else; or
(b)a person is or is not indebted to someone else in a stated amount; or
(c)a person is or is not indebted to someone else in an amount that is more than a stated amount.
(2)This section applies only in relation to a debt that is not more than $250 000.
It can be seen that in relation to a jurisdictional limit, the legislature takes the same approach in the Magistrates Court Act as is takes in the ACAT Act, namely to limit claims for an amount of money to claims not exceeding $250,000;[28] claims for detention of goods to goods valued at not more than $250,000;[29] and claims for declaration of a debt to a debt not exceeding $250,000.[30] The jurisdictional limit is different, but the principle is the same.
[28] Magistrates Court Act 1930, s 257(1)
[29] Magistrates Court Act 1930, s 257(3)
[30] Magistrates Court Act 1930, s 261
By contrast, in relation to “a civil action for nuisance”, section 260 empowers the Magistrates Court to “grant the same relief as the Supreme Court may grant in a similar action in that court”. Section 260 mirrors section 22 of the ACAT Act. Neither section limits the kinds of non-monetary orders the Court or the Tribunal, respectively, may make in a “civil action for nuisance” or in a “nuisance application”, respectively. In particular, the jurisdictional limit does not apply to the cost of complying with a non-monetary order.
Fourth, to construe the jurisdictional limit in section 18 as applying to a non‑monetary order for nuisance produces impractical and illogical results. I give some examples:
(a)Assume there were different quoted or estimated costs to rectify an alleged nuisance, some above $25,000 and some below. It is illogical to conclude the Tribunal’s jurisdiction would depend on it proceeding by reference to the lesser quote or estimate, especially where debate might arise, for example, about whether the quoted works can be done for the quoted price; whether the lower quote permits a variation that may cause the cost to rise above $25,000; whether the quoted work is necessary and/or appropriate to rectify the nuisance; or whether the person ordered to perform the rectification work should be required to accept the lower quote. Ordinarily, it would be for the person the subject of a non-monetary order to comply with the order in such manner as they determine.
(b)Assume all quotes or estimated costs of compliance were above $25,000 as in this case. Debate might ensue as to whether the quoted work could be done for a cheaper price or different work could be done for a lower price to rectify the nuisance.
(c)Assume the Tribunal made a non-monetary order requiring a person to rectify a nuisance with reliance on evidence that compliance could be achieved for a cost less than $25,000. Debate would invariably ensue about the lawfulness of the order if the person ordered to rectify the nuisance encounters unforeseen costs or price rises that cause the total cost of compliance to be greater than $25,000.
(d)Assume the circumstances considered in Tipsy Bull Pty Ltd v Foundry Enterprises Pty Ltd trading as Hopscotch Bar[31] where the owner of a hospitality business on Lonsdale Street, Braddon, applied for an order that the owner of an adjoining hospitality business reduce the level of noise from its business on the grounds that the noise constituted an actionable nuisance. Whilst the Tribunal dismissed the application because it was not persuaded that the level of noise constituted an actionable nuisance, it nevertheless commented on the practical problems that would arise from a monetary limit on an injunctive order for nuisance. The Tribunal said:
How does one calculate the “value” of an injunctive order of the kind sought in this case? An order that the respondent comply with the SNLs would not amount to any direct payment of damages or compensation to the applicant by the respondent, but may indirectly benefit his business in the long term to a value well in excess of $25,000. Similarly, while such an order may not result in any immediate monetary imposition on the applicant …, it may have a detrimental effect on its business that, again, exceeds the tribunal’s jurisdiction. The answers to these questions are beyond the scope of this decision.[32]
[31] Tipsy Bull Pty Ltd v Foundry Enterprises Pty Ltd trading as Hopscotch Bar [2019] ACAT 51
[32] Tipsy Bull Pty Ltd v Foundry Enterprises Pty Ltd trading as Hopscotch Bar [2019] ACAT 51 at [46]
I reject the proposition that legislation can be construed in a manner that creates scope for doubt about jurisdiction after the event.
In reaching my conclusion that the jurisdictional limit does not apply to a non‑monetary order in an action for nuisance, I considered two decisions which at first suggest a contrary view.
The first is Abbey v Mack[33] to which Justice Mossop referred. In that case, the Supreme Court, per Justice Cowdroy, considered a goods application brought in the Tribunal where the applicant (Mr Abbey) sought an order for return of a horse which had an agreed value of approximately $80,000. At the time, the jurisdictional limit in section 18 of the ACAT Act was $10,000. The question was whether the Tribunal had jurisdiction to order return of the horse where its value exceeded the jurisdictional limit in section 18. The Tribunal referred the question to the Supreme Court.
[33] [2010] ACTSC 140
Justice Cowdroy answered “no”. His Honour said:
19. … A goods application, which is a category of a civil dispute application, may not specify the value of the goods claimed.
20. Section 19 [of the ACAT Act] specifically anticipates that a goods application might be made in respect of goods which have a value in excess of the jurisdiction of ACAT.
…
21. Section 19[34] of the ACAT Act accordingly provides express power to ACAT to determine the value of the goods. Clearly, the only purpose of such a provision is to enable ACAT to establish whether it has jurisdiction in respect of a goods claim. If the value of the goods was irrelevant to ACAT’s jurisdiction, s 19[35] would be unnecessary.
…
26. Taking into account the provisions of ss 18 and 19 and having regard to the object of the ACAT Act, the Court finds that it would be inconsistent with the scheme of the legislation if ACAT, instead of ordering return of the goods, had jurisdiction to award an amount to be paid in excess of the monetary limit imposed by s 18 of the ACAT Act in lieu of a return of the goods. The same finding applies where the goods were destroyed or were otherwise unavailable as envisaged by Direction 84(4).
27. The jurisdictional limit determined by s 18 of the ACAT Act applies to civil dispute applications, which by definition includes goods applications. Accordingly, if a claim for detention of the goods is made and the goods claimed are assessed by ACAT to have a value exceeding $10,000, ACAT has no jurisdiction to deal with such claim.[36]
[34] In my view, this is more specifically a reference to section 19(2) of the ACAT Act.
[35] In my view, this is more specifically a reference to section 19(2) of the ACAT Act.
[36] Abbey v Mack [2010] ACTSC 140 at [21] – [27]
I considered whether the finding in Abbey v Mack that the jurisdictional limit on a proposed non-monetary order in response to a goods application applies equally to a nuisance application. For two reasons, I concluded it does not.
First, after considering the facts in Abbey v Mack which went directly to the question whether the jurisdictional limit impacted on the kind of non-monetary orders the Tribunal could make, Justice Mossop did not suggest the jurisdictional limit governs a non-monetary order in response to a nuisance application. To the contrary, his Honour’s third interpretation was that “the limitation did not apply”.
Second, the decision in Abbey v Mack turned on:
(a)the operation of section 19, which expressly and only provides for a civil dispute application claiming an amount of money, a debt application and a goods application;
(b)Justice Cowdroy’s finding that that section 19(2) would be “unnecessary” or purposeless if the value of the goods was irrelevant; and
(c)the need to read section 19 in conjunction with section 18 and in the context of the ACAT Act as a whole.
None of those factors applies to a nuisance application. There are no provisions commenting on a nuisance application, save for a circumstance where an applicant claims an amount of money arising from the nuisance. It may be presumed that if the legislature had intended to limit the Tribunal’s jurisdiction to make a non-monetary order in response to a nuisance application by reference to the cost of compliance, noting section 18 has placed a jurisdictional limit on other kinds of civil dispute applications, it would have done so.
Section 18’s only function, read with section 19, is to place a monetary limit on the amount that can be dealt with in relation to a claim for money, a debt or goods.
The second decision is Young v Hammond,[37] decided in 2012 before Justice Mossop’s decision in Campbell v Blackshaw. In Young v Hammond, the Tribunal considered a nuisance application involving facts materially similar to the facts in this case. A neighbour applied for an order that their adjoining neighbour remove a tree that overhanged their property. They alleged there was a real and immediate risk the tree would fall on their house and endanger occupants and visitors to their house. In that case, unlike this case, the adjoining neighbour did not object to removal of the tree but declined to fund the cost of the removal. In issue were questions about whether the tree was a Commonwealth or ACT asset so that one of those entities should pay for its removal; whether there was a Constitutional barrier to the Tribunal making an order regarding removal of the tree; and whether the tree constituted an actionable nuisance.
[37] Young and Hammond [2012] ACAT 30
After reviewing the law of nuisance, the Tribunal commented briefly on its jurisdiction to make injunctive orders to rectify the nuisance. On the question of a financial limit, the Tribunal said:
Section 15[38] of the ACT Civil and Administrative Tribunal Act 2008 confers jurisdiction on the Tribunal for actions in nuisance and trespass up to a limit of $10,000. The quotes for the tree removal are within this limit.[39]
[38] The reference to section 15 appears to be incorrect. I presume the Tribunal intended to refer to section 17.
[39] Young and Hammond [2012] ACAT 30 at [80]
I do not consider the statement to be determinative of whether the jurisdictional limit applies to a non-monetary order sought in response to a nuisance application. The Tribunal did not consider, nor need to consider, the question. The issue never arose.
Other matters
Several procedural issues need to be addressed before listing this matter for hearing and determination.
First, in light of these reasons, the parties might wish to revise their submissions about who should pay for removal of the tree, if the applicants establish that it constitutes an actionable nuisance, or whether the cost should be shared in some way.
Second, in light of the submissions on 18 October 2022, a question arises whether the applicants should be given leave to amend their claim to seek, as an alternative, an order that the respondent’s carry out remedial work to rectify the nuisance and (if so) whether they should be given time to file evidence in support.
There might be other preliminary issues to be addressed.
In the circumstances, I will list the matter for further directions on Thursday, 15 December 2022 at 10:00am to hear the parties’ viewpoints about how the matter should proceed.
………………………………..
Presidential Member G McCarthy
| Date of hearing: | 18 October 2022 | |
| First Applicant: | In person | |
| Respondents: | In person | |
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