Priolo v Nguyen [No 3] - [2024] WASC 47

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   PRIOLO -v- NGUYEN [No 3] [2024] WASC 47
CORAM:   WHITBY J
HEARD:   13 FEBRUARY 2024
DELIVERED          :   28 FEBRUARY 2024
FILE NO/S:   CIV 1453 of 2021
BETWEEN:   ANTHONY PRIOLO
MARIA ROSALIE PRIOLO
First Plaintiffs
AND
KHANH HOANG NGUYEN
First Defendant
NONNII CONSTRUCTION PTY LTD
Second Defendant
CIVCON CIVIL & PROJECT MANAGEMENT PTY LTD
Third Defendant

Catchwords:

Practice and procedure - Pleadings - Strike out application - Torts - Trespass - Nuisance - Negligence - Mesne profits - Particulars - Reasonable cause of action - Case management principles

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Representation:

Counsel:

First Plaintiffs	:	D Pratt
First Defendant	:	N W Kalmund
Second Defendant	:	N W Kalmund
Third Defendant	:	N W Kalmund

Solicitors:

First Plaintiffs	:	Bennett
First Defendant	:	Hotchkin Hanly
Second Defendant	:	Hotchkin Hanly
Third Defendant	:	Hotchkin Hanly

Case(s) referred to in decision(s):

Alphington Developments Pty Ltd v Amcor Pty Ltd (No 5) [2023] VSC 637
Australian Automotive Repairers' Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568
Barclay Mowlem Construction Ltd Dampier Port Authority & Anor [2006] WASC 281
Barker v R (1983) 153 CLR 338
Beach Petroleum NL v Johnson [1991] FCA 839
DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97
English v Vantage Holdings Group Pty Ltd [2021] WASCA 47
Esperance Cattle Co Pty Ltd v Granite Hill Pty Ltd [2014] WASC 279
Grainger and Anor v Williams and Ors [2005] WASC 286
Hoh v Frosthollow [2014] VSC 77
Jeffrey Stewart Lee & Lawfirst Pty Ltd [2023] WASCA 59
Johnson v Buchanan [2012] VSC 195
Marsh v Baxter [2015] WASCA 169
Nyoni v Patterson [2012] WASCA 171
Peter Davis v Halliday Financial Management Pty Limited [2014] NSWSC 1371
Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 7
Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398

WHITBY J:

Background

The plaintiffs own the property at 80 Viking Road, Dalkeith. The first defendant and his wife, own the property next door at 78 Viking Road, Dalkeith.
The properties are separated by a single leaf brick wall approximately 90 mm wide (Dividing Screen Wall). The Dividing Screen Wall is parallel to the boundary between the plaintiffs' and first defendant's properties and is located entirely within the plaintiffs' property. The strip of land to the east of the Dividing Screen Wall is on the plaintiff's property (Plaintiffs' Adjoining Land).
The first defendant is a registered builder and is the sole director of the second and third defendants. In March 2015, the City of Nedlands granted a permit to the first defendant for construction of a new dwelling and swimming pool on his property (Building Permit).
Between June 2015 and October 2017, demolition and construction took place on the first defendant's property (Works). The Works included knocking down the single storey residence, erecting a multi-storey residence in replacement and constructing a swimming pool.
The plaintiffs have several complaints about the way in which the Works were conducted and as a result, the plaintiffs have instituted this action against the defendants for nuisance, negligence and trespass.
The plaintiffs have amended their statement of claim on a number of occasions - most recently by their second amended substituted statement of claim filed on 2 November 2023 (SOC).
The defendants have applied to strike out the whole of the SOC, or alternatively various paragraphs of and prayers for relief in the SOC, on the basis that it discloses no reasonable cause of action and/or is embarrassing.
This is not the first time the defendants have applied to strike out a version of the plaintiffs' statement of claim. On 24 January 2023, a registrar of this court ordered, upon the application of the defendants, that certain paragraphs of the statement of claim be struck out and that the plaintiffs be given leave to replead.
The action was commenced on 28 May 2021 yet, due to the time that has been spent dealing with interlocutory applications it has not progressed past the point of the parties' exchanging pleadings. For this reason, I have placed significant importance on case management principles in determining this application.
For the reasons that follow, I have decided that the defendants' application must be dismissed.
In these reasons, I set out a summary of the legal principles applicable to the strike out application and then consider the application by reference to specific paragraphs in relation to each of the Building Permit and the Works, each of the causes of action alleged by the plaintiffs, and finally, the plaintiffs' claim for exemplary and aggravated damages.

Defendants' strike out application

By application filed 2 November 2023 (Application), the defendants seek to strike out the plaintiff's SOC pursuant to O 20 r 19(1) of the Rules of the Supreme Court 1971 (WA) (Rules).
Alternatively, the defendants seek to strike out [10] - [17] and [19] - [32] and prayers for relief [A] and [B] of the SOC pursuant to O 20 r 19(1)(a) and O 20 r 19(1)(c) of the Rules.
Further in the alternative, the defendants seek to strike out the words 'including mesne profits for the period of the trespass' from [A(b)] of the prayer for relief and [A(c)] [A(d)] and [B(b)] of the prayer for relief pursuant to O 20 r 19(1)(a) and O 20 r 19(1)(c) of the Rules.
The defendants' application seeks to strike out various paragraphs of the SOC by reference to the individual causes of action referred to in the SOC - trespass, nuisance and negligence. The defendants say that due to the deficiencies in the SOC, the whole of the SOC discloses no reasonable cause of action and ought be struck out in its entirety.

Legal principles

Order 20 r 19(1)(a) and (c) of the Rules respectively provide that the court may strike out any pleading on the ground that it discloses no reasonable cause of action or that it may prejudice, embarrass or delay the fair trial of the action.
The principles applicable to strike out applications are not in dispute. I adopt the oft-cited summary of the principles articulated by Smith J in Vantage Holdings Group Pty Ltd v Donnelly [No 4]:[1]
[1] Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398 [60(a)] - [60(j)], cited with approval in DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97 [226] and English v Vantage Holdings Group Pty Ltd [2021] WASCA 47 [56].
(a)the essential functions of a pleading are to define and limit the issues for decision, to provide the basis for determining discovery and the admissibility of evidence for trial, and to ensure a fair trial by putting the other side on notice of the case it must meet;
(b)a statement of claim must not plead allegations at too high a level of generality. A pleading must be sufficiently particular to conform with one of the primary objects of pleadings, to inform the opposing party of the case that it must meet;
(c)a statement of claim must state specifically the relief or remedy claimed;
(d)the court should proceed with caution before striking out a pleading on the ground that it does not disclose a reasonable cause of action. While the court may determine a difficult question of law on such an application, it would usually be appropriate to leave the determination of such questions for trial;
(e)in alleging no reasonable cause of action:
i.the question to be decided is not whether the facts pleaded are in themselves sufficient to give rise to a cause of action. Rather, the question is whether it would be open to the party (on its pleadings) to prove facts at the trial which would constitute a cause of action; and
ii.'reasonable' means reasonable according to law. If the facts pleaded conceivably give rise to relief, then the cause of action should be held to be reasonable;
(f)the mere fact that a case appears weak is not of itself sufficient to strike out the action;
(g)in considering a strike out application, it is now necessary to consider the role of pleadings in the context of case management techniques. Case management considerations are not, however, necessarily antithetical to the observance of pleading rules. The objects of O 1 r 4A and 4B of the Rules of the Supreme Court 1971 (WA) are often promoted by a clear and precise statement of the issues for decision;
(h)provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action (or defence), and apprising the parties of the case that has to be met, the court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the court to be spent extensively debating the application of technical pleading rules that evolved in, and derive from, a very different case management environment;
(i)pleadings may be struck out on the ground that they may prejudice, embarrass or delay the fair trial of the action because they are evasive, they conceal or obscure the real questions in controversy, they are ambiguous or not reasonably intelligible, they raise immaterial or irrelevant issues, they fail to confine the issues or state the case of the party in question with reasonable particularity, or they raise a case in terms which are simply too general; and
(j)irrelevant or unnecessary pleas in a statement of claim will be struck out on the grounds that they will prejudice, embarrass or delay the fair trial of the action where the defendant must traverse the allegations and, thereby, raise false issues. (citations omitted)
Modern case management and pre-trial directions assist the parties to understand the case that they have to meet at trial - leaving little room for a party to be taken by surprise. It is only where deficiencies in a pleading have a significant impact on a party's preparation of its case, that a court should seriously entertain interlocutory applications in relation to pleadings. The court must also be mindful of the resources and time taken to resolve pleadings disputes and whether that is disproportionate to the benefit derived from such applications.[2]
[2] Barclay Mowlem Construction Ltd Dampier Port Authority & Anor [2006] WASC 281 [4] - [9].
If a pleading fulfils the basic function of informing the opposing party of the case it must meet and ensure they are not taken by surprise, the court should be reluctant to entertain an application to strike it out.
I now turn to consider the Application by reference to the defendants' objections to specific paragraphs, causes of action pleaded in, and relief sought by the SOC.

The Building Permit

By [8], [9] and [11], the plaintiffs plead that:
(1)the first defendant obtained a building permit, issued pursuant to the s 25 of the Building Act 2011 (WA), for the construction of a new dwelling and swimming pool [8];
(2)the first defendant is required to carry out the Works in compliance with the Building Act [9]; and
(3)the first defendant was subject to specified statutory duties when carrying out the works [11].
The defendants submit that these paragraphs of the SOC are deficient because they do not specify to whom the first defendant owed a statutory duty.
In my view, there is no merit in the defendants' submission. It is clear, on the reading of the whole of the SOC, that the statutory duty is alleged to be owed to the plaintiffs - there could be no suggestion that the defendants would be taken by surprise by such an allegation.
I refuse the defendants' application to strike out [8], [9] and [11] of the SOC.

Paragraphs 10, 12 and 13

In [10] of the SOC, the plaintiffs plead that the Works were undertaken 'by or on behalf of the first defendant'. The first defendant says that he is not informed of the case that he has to meet - he does not know whether it is alleged that he personally did the acts or whether it is alleged he is vicariously liable for acts done by the second and/or third defendants.
In [12] and [13] of the SOC, the plaintiffs plead, respectively, that each of the second and third defendants were engaged by the first defendant to undertake works in connection with the performance of the Works. The defendants say that this is a bare assertion that fails to plead what each defendant was engaged to do.
The defendants contend that [10], [12] and [13] of the SOC are embarrassing and should be struck out as there is a failure to expressly plead what acts each of the defendants did. The defendants say that this deficiency infects all three causes of action pleaded by the plaintiffs.
The plaintiffs submit that the first defendant is informed of the case he has to meet - he was the registered builder to whom the Building Permit was issued ([8] of the SOC) and was the sole director of the second and third defendant ([2.2] - [2.3] SOC). The plaintiffs say the first defendant has knowledge of the role that each of the defendants played in undertaking the Works and it is open to the defendants to plead in their defence the extent to which each of them did or did not undertake the Works.
In my view [10], [12] and [13] do plead the necessary material facts to enable the defendants to understand the case it is that they each have to meet. The plaintiffs plead that the first defendant undertook the Works or that they were undertaken by the second and third defendants on his behalf. It is open to each of the defendants to plead that they did not undertake the Works and it is open to the first defendant to also plead that the Works were not undertaken on his behalf. In my view, the defendants looking at these paragraphs would have no difficulty in ascertaining that the plaintiffs allege that the first defendant undertook the Works or engaged the second and/or third defendants to do so on his behalf.
I refuse to strike out [10], [12] and [13].

Trespass

By [14] of the SOC the plaintiffs plead that the first defendant has trespassed and continues to trespass on the Plaintiffs' Adjoining Land. The plaintiffs provide the following particulars thereof:
14.1During the course of the Works, earth and other fill was placed and remains against the Dividing Screen Wall and thereby on the Plaintiffs' Adjoining land to a height above the pre-existing ground level.
14.2From at least August 2016, service cables and pipes were laid below the soil surface adjacent to and abutting the Dividing Screen Wall and remain on and in the Plaintiffs' Adjoining Land;
14.3From at least 1 December 2016, outdoor decking was constructed abutting the Dividing Screen Wall and remain on the Plaintiff's Adjoining Land.
14.4During and from at least March 2017, paving slabs and fixing mortar were laid abutting the Dividing Screen Wall and remain on the Plaintiff's Adjoining Land.
14.5During March 2017, concrete footings for the First Defendant's front garden were poured abutting the Dividing Screen Wall and remain on and in the Plaintiffs' Adjoining Land.
14.6Holes were drilled into the Diving Screen Wall and masonry anchors were affixed to and remain in the Dividing Screen Wall.
14.7The eastern face of the Dividing Screen Wall was painted.
The defendants contend that [14] is a bare assertion of past and continuing trespass by the first defendant which is devoid of any plea of material facts as to the precise acts of past trespass and the precise acts of continuing trespass. The defendant says that the particulars are material facts and cannot fill in the gaps of a deficient pleading. This is compounded, the defendants say, by the ambiguity in [10] of the SOC.
Further the defendants say that, even if the particulars of [14] are read as material facts, they do not disclose any reasonable cause of action against the first defendant - as the particulars do not allege that the first defendant had any involvement in those acts.
The plaintiffs say that the only person alleged to have trespassed, by [14] of the SOC, is the first defendant and that the particulars of [14] are particulars of the first defendant's continuing trespass.
While it is true that particulars are not intended to fill gaps in a deficient pleading,[3] in recent years the courts have taken a more lenient approach to this distinction.[4] In Beach Petroleum NL v Johnson, Von Doussa J in considering this distinction in the context of a strike out application said:[5]
A strict distinction between material facts and particulars has tended to become more obscured as the years have gone by. The tendency now is towards narrative pleading as there is a growing concern that pleadings according to traditional rules do not adequately make known to the Court and to the parties the nature of the opposing cases in complex matters. … Technical objections raised to pleadings on the ground of alleged want of form will be received with less enthusiasm today than in times past. Nevertheless the pleadings, including particulars stated therein, must be adequate to disclose the case which the opposing party must meet at trial, and to disclose a reasonable cause of action.
[3] Hoh v Frosthollow Pty Ltd [2014] VSC 77 [13].
[4]Australian Automotive Repairers' Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568 [17]; Peter Davis v Halliday Financial Management Pty Limited[2014] NSWSC 1371 [10]; Alphington Developments Pty Ltd v Amcor Pty Ltd (No 5) [2023] VSC 637 [420].
[5] Beach Petroleum NL v Johnson [1991] FCA 839 [40].
To establish a cause of action of trespass against land, it is necessary for the plaintiffs to plead that they were entitled to possession of land and that the first defendant entered the land without the consent of the plaintiff.[6]
[6] Nyoni v Patterson [2012] WASCA 17 1 [42].
The plaintiffs plead that they were entitled to possession of the Plaintiffs' Adjoining Land ([1.3]) and that the first defendant trespassed and continues to trespass against that land without the consent of the plaintiffs ([14] of the SOC). These material facts are sufficient to support a cause of action of trespass to land against the first defendant.
The defendants also submitted that [15] - [17] of the SOC ought be struck out on the basis that they are infected by the unspecified claim in trespass contained in [14]. Given my finding that [14] is sufficient to ground a cause of action in trespass, it follows that the objections to [15] - [17] are also without merit.
The defendants also contend that the particulars in [15] are inconsistent with [14] and that the particulars in [17] are not capable of supporting the plea that the trespass was made with contumelious disregard for the plaintiffs' rights.
In my view, the particulars to [15] merely confine the alleged damage caused by the first defendant's trespass. This is not inconsistent with [14].
In relation to [17], contumelious disregard is not an element of trespass to land. The defendants are at liberty, at trial, to assert their conduct was absent negligence and was instead a byproduct of unintentional conduct.[7] The contentions raised by the defendants in this regard are substantive and ought be dealt with at trial.
[7] Barker v R (1983) 153 CLR 338 at 357; Johnson v Buchanan [2012] VSC 195 [63].
I refuse the defendants' application to strike out [14] to [17] of the SOC.

Mesne profits

It is appropriate that, at this stage, I deal with the defendants' application to strike out the words 'including damages for mesne profits' in [A(b)] of the prayer for relief.
Counsel for the defendants submitted that mesne profits are only available when physical possession of the land has been recovered or after an action is brought to recover possession of the land. Therefore, counsel for the defendants says that the plaintiffs' plea at [1.3] of the SOC that they were at all material times in lawful occupation and entitled to exclusive possession of the Plaintiffs' Adjoining Land deprives the plaintiffs of the right to claim mesne profits.

Counsel for the plaintiffs submitted that mesne profits are merely a form of damages for trespass. Counsel submitted that, in order to claim mesne profits, the plaintiffs must have physical possession of the land, or have brought an action for recovery of the land, prior to making a claim for mesne profits.
In my view, it is reasonably arguable that the plaintiffs are entitled to mesne profits. That is because it is a legal issue as to whether the plaintiffs must have lost possession of the Plaintiffs' Adjoining Land and have recovered it or sought to recover it before they can claim mesne profits. I consider it is reasonably arguable that such a requirement only applies where the defendant was granted a license to use, or lease, the land. The legal reasoning for that limited application may be along the following lines:[8]
(1)the defendant is entitled to possession up until their lease or license expires;
(2)upon expiry, the defendant is no longer legally entitled to possession of the land, however may still be in actual possession of the land;
(3)given the defendant's legal entitlement to possession has expired, they may be trespassing;
(4)therefore, given immediately prior to trespassing the defendant was in lawful possession of the land, the plaintiff must regain physical possession of land or initiate an action to recover the land; and
(5)upon regaining physical possession or instituting proceedings to do so, the plaintiff would be entitled to damages in the form of mesne profits from the time that the trespass occurred.
[8] Esperance Cattle Co Pty Ltd v Granite Hill Pty Ltd [2014] WASC 279 [452], Grainger and Anor v Williams and Ors [2005] WASC 286 [56] - [60].
It is therefore reasonably arguable, in my view, that because the first defendant was never in lawful possession of the Plaintiff's Adjoining Land, the requirement for the plaintiffs to lose possession and then regain it (or institute proceedings to regain it) is not applicable. In this case, immediately prior to the alleged trespass, the plaintiffs plead they were in legal possession of the Plaintiffs' Adjoining Land and that they were in lawful and exclusive possession of the Plaintiffs' Adjoining Land at all material times.
In any event, at this stage of the proceedings and upon an interlocutory strike out application, it is not appropriate for me to express a view on the merits of this issue. It is enough that it is open to the plaintiffs, on the SOC, to prove facts at trial which would constitute a cause of action in trespass. The facts pleaded by the plaintiffs in the SOC conceivably give rise to relief in the form of mesne profits. Whether or not the plaintiffs are entitled to mesne profits is a matter to be determined at trial.
I refuse the defendants' application to strike out the words 'including damages for mesne profits' in [A(b)] of the prayer for relief.

Nuisance

The plaintiffs' plea of nuisance is contained in [27] to [29] of the SOC. The cause of action of nuisance is based upon the plaintiffs' plea that it was reasonably foreseeable that vibrations caused by the Works could cause physical damage to the plaintiffs' property so as to constitute an unreasonable interference with the plaintiffs' use and enjoyment of their property.
The pleadings relating to the vibration damage are contained in [19] to [25] of the SOC. By [19] of the SOC, the plaintiffs plead that vibrations resulting from the Works caused physical damage to the plaintiffs' home and property. Particulars of the alleged damage are contained in Annexure A to the SOC. By [20] to [25] of the SOC, the plaintiffs plead that the defendants were notified of various acts causing vibration damage.
The defendants say that [19] discloses no reasonable cause of action, alternatively is embarrassing, because it fails to plead how the vibrations are alleged to have occurred, who caused them or when they occurred. The defendants say that [20] to [25] of the SOC are also deficient because they fail to plead any connection between any of the defendants and the acts alleged to have caused the vibration damage.
In relation to [26] of the SOC, in which the plaintiffs plead that the vibration damage referred to [20] to [25] of the SOC was caused by each of the defendants in contumelious disregard of the plaintiffs' rights, the defendants submit that it must be struck out because it relies upon deficient paragraphs.
The defendants submit that [27] to [29] of the SOC do not plead material facts which establish the elements of an action in nuisance and should be struck out.
The defendants contend that it is unclear whether the words in [27] of the SOC 'so as to constitute' and those that follow are a continuation of the matters alleged to have been reasonably foreseeable, or are asserted to be a conclusion or consequence following from the asserted reasonable foreseeability.
Further, the defendants submit that the reasonable foreseeability pleaded in [27] of the SOC fails to identify who is alleged to have known, or ought to have known, about certain matters.
The defendants say that it is not an answer to the deficiencies in the SOC to say that the defendants have knowledge of the matters that the plaintiffs have failed to plead. In support of this submission, the defendants rely upon the case of Hoh v Frosthollow,[9] in which Durham J stated:
Pleadings have another important audience, the judge or the magistrate. In most cases, the opposite party will have the assistance of some knowledge of the factual background, some knowledge, in other words, of the facts against which the pleading can be assessed. The tribunal of fact will never be in that position. The pleadings must therefore be drawn so as to allow the impartial and uninformed reader to know what the case is about. This then cannot be achieved unless the pleadings form a coherent narrative of material fact with the necessary detail included as particulars. It must be drawn with a careful eye to the evidence that will necessarily be called if the case is going to be made out. And if the party pleading does not have that evidence, then the case ought not go to trial. Indeed, it is generally true to say that it ought not proceed beyond the point at which the pleading appreciates, perhaps because the very act of pleading reveals it, that there is, and will remain, a gap in the evidence upon which the cause of action or defence is based and without which that cause of action or defence will fail.
[9] Hoh v Frosthollow [2014] VSC 77 [19].
The plaintiffs submit that if the defendants' case is that the vibrations were caused by someone other than the first, second or third defendants then that is a matter for them to plead in their defence.
The plaintiffs say that the cause of action in nuisance is simple: it was reasonably foreseeable that vibrations caused by the Works could cause damage that would constitute an unreasonable interference with the plaintiffs' use and enjoyment of land.
The elements for a cause of action in nuisance are:[10]
(1)there is interference with an occupier's use and enjoyment of their land;
(2)the interference is unreasonable;
(3)the interference is substantial; and
(4)(in the case of encroachment or physical damage) the interference has caused the occupier damage.
[10] Marsh v Baxter [2015] WASCA 169 [243] - [245].
In Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management, the Court of Appeal said:[11]
The obligation in the rules is to plead material facts and if the pleaded material facts reveal unreasonable interference and nuisance, then the cause of action, ie the facts supporting the claim for relief, is revealed.
[11] Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 7 [316].
In my view, upon a fair reading of the SOC, the vibration damage pleaded puts the defendants on notice of the case they must meet at trial. It is clear that the plaintiffs allege by [10], [12] and [13] of the SOC, that the first defendant undertook the Works or that he engaged the second and/or third defendants to do so on his behalf. It is also clear that the plaintiffs are alleging that the each of the defendants committed the nuisance and it is open to the plaintiffs, on the SOC, to prove facts at trial which would constitute a cause of action in nuisance. I am satisfied that the SOC pleads material facts from which the court can conclude that the interference to the plaintiffs' use and enjoyment of their land was substantial and unreasonable.
It is also open to the plaintiffs to argue at trial that reasonable foreseeability is an objective test that does not require them to plead specific knowledge of the defendants.
Further, given that I do not accept the defendants' submission that it is unclear who the plaintiffs alleged caused the nuisance, there is no need to consider the issue of whether the pleading is deficient because of matters solely within the knowledge of the defendants. I am satisfied that the SOC is drawn so as to allow the trial judge to know what the case is about.
I finally turn to consider the submission of the defendants that it is unclear whether the words in [27] of the SOC 'so as to constitute' and those that follow are a continuation of the matters alleged to have been reasonably foreseeable, or are asserted to be a conclusion or consequence following from the asserted reasonable foreseeability. I do not accept this submission - in my view, it is clear that the plaintiffs are pleading that it was reasonably foreseeable that the vibrations could cause damage that would constitute an unreasonable interference with the plaintiffs' use and enjoyment of the land.
I refuse the defendants' application to strike out [19] to [29] of the SOC.

Negligence

In [30] to [32] of the SOC, the plaintiffs plead that each of defendants owed the plaintiffs a duty to exercise reasonable care to ensure that the vibrations caused by the Works did not cause physical damage to the plaintiffs' property, that the defendants breached that duty by reason of the matters pleaded in [10] to [13], [18] and [19] of the SOC and that as result of that breach, the plaintiffs have suffered loss and damage.
The defendants submit that those paragraphs are deficient because they do not plead the material facts that give rise to the alleged duty of care. The defendants submit that this deficiency is compounded because the SOC does not plead the basis upon which the duty is said to exist for each of the defendants. The defendants say that this is because the ambiguity in [10], [12] and [13] make it difficult to characterise the cause of action of negligence as it applies to each defendant.
The plaintiffs submit that the SOC pleads all material facts that give rise to a cause of action in negligence against each of the defendants.
In my view, it is open to the plaintiffs, on the SOC, to prove facts at trial which would constitute a cause of action in negligence against each of the defendants. That is because the SOC pleads, by [30], [31] and [32] respectively, the following matters:
(1)each of the defendants owed a duty to the plaintiffs to exercise reasonable care to ensure the vibrations caused by the Works did not cause physical damage to the plaintiffs' property;
(2)a breach occurred of this duty as described in SOC [10] - [13] and [18] - [19]; and
(3)by reason of said breach the plaintiffs have suffered damage and loss.
Given the plea contained in [30] to [32] of the SOC, together with the fact that I have refused to strike out [10] to [13], [18] and [19] of the SOC, I am of the view that the SOC pleads material facts which disclose the elements of the cause of action of negligence.
I refuse to strike out [30] to [p32] of the SOC.

Exemplary and aggravated damages

The defendants contend that the SOC does not comply with O 20 r 9(3) of the Rules which provides:
A claim for exemplary damages or a claim for aggravated damages must be specifically pleaded together with the facts on which the party pleading relies.
As a result, the defendant submits that [A(c)], [A(d)], and [B(b)] of the prayer for relief must be struck out.
A failure to include any material facts related to exemplary or aggravated damages will result in the prayer for relief being struck out.[12]
[12] Jeffrey Stewart Lee & Lawfirst Pty Ltd [2023] WASCA 59 [45] - [47].
However, I find that the plaintiffs' claim for exemplary and aggravated damages is expressly pleaded together with the facts giving rise to the entitlement to such damages - in relation to trespass, the relevant paragraph is [17] and [A(c)-(d)] of the prayer for relief and in relation to nuisance and negligence, the relevant paragraphs are [20] ‑ [26] and [B(b)] of the prayer for relief. It is not necessary for the plaintiffs to extensively cross-reference the claim for exemplary and aggravated damages within the SOC to fulfil the requirements of O 20 r 9(3) of the Rules.
I refuse the defendants' application to strike out [A(c)], [A(d)], and [B(b)] of the prayer for relief.

Conclusion and orders

I dismiss the Application. The parties should confer and attempt to agree orders. If agreement cannot be reached, parties are to file competing minutes of proposed orders by 6 March 2024.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RP
Associate to the Honourable Justice Whitby
28 FEBRUARY 2024