Renfors v Alexandrina Council

[2024] SADC 20

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil: Minor Civil Review)

RENFORS v ALEXANDRINA COUNCIL

[2024] SADC 20

Judgment of his Honour Auxiliary Judge Chivell  

28 February 2024

LOCAL GOVERNMENT - LEGAL RELATIONSHIPS AND PROCEEDINGS - LIABILITY FOR TORTS - NEGLIGENCE

TORTS - NEGLIGENCE - PROCEDURE AND EVIDENCE - EVIDENCE - EXPERT EVIDENCE

Application arising from damage sustained to applicant's property in 1:15 year rain event. Application dismissed in Magistrates Court - applicant had not demonstrated that damage caused by actions of council in reducing size of stormwater outlets to the road. Application for review pursuant to s 38 of Magistrates Court Act 1991 (SA).

Held: Application dismissed. Decision of Judicial Registrar correct.

Magistrates Court Act 1991 (SA) s 38; Uniform Civil Rules 2020 (SA) r 74.10, referred to.
Renfors v Alexandrina Council [2024] SAMC 6, considered.

RENFORS v ALEXANDRINA COUNCIL
[2024] SADC 20

Minor Civil Review

1. On 12 November 2022, it rained in Strathalbyn. It rained so much that it was described as a 1:15 year rain event. The Bureau of Meteorology said that in Strathalbyn 48.2mm was received in a 24-hour period. The highest rainfall in the previous 27 years was 39mm in 1997.

2. Mr Renfors owns a property in Strathalbyn. He has a house and a shop selling ‘antiques and collectables’. He said that the rainfall that he recorded on 12 November 2022 was more like 42mm in a 6-hour period. The stormwater system on his property failed to cope and his property was flooded, causing him damage.

3. Mr Renfors sued the Alexandrina Council in the Minor Civil Jurisdiction of the Magistrates Court. On 20 November 2023, a Judicial Registrar of the Court dismissed his application. Mr Renfors now seeks a review of the Judicial Registrar’s orders pursuant to s 38 of the Magistrates Court Act 1991 (SA).

4. Mr Renfors’ claim was based upon his contention that the damage to his property was the result of work performed by the council in July 2022, in which the diameter of the PVC stormwater pipes under the footpath to the gutter outside the property was reduced from 100mm to 90mm. Mr Renfors contended that the internal diameter of the replaced pipes was in fact 85mm, but for reasons which I will discuss, nothing turns on that discrepancy.

5. The council denied that it was responsible for Mr Renfors’ damage. They commissioned a report from Mr Bassam Deek, who is a principal forensic engineer at FMG Engineering, a business operated by the well-known engineering firm Koukourou Pty Ltd.

6. Mr Deek describes himself in his Expert Witness statement as a Civil, Structural, Geotechnical and Forensic Engineer, a Chartered Professional Engineer and a Fellow member of Engineers Australia.

7. Mr Deek included in his report a statement which complies with Rule 74.10 of the Uniform Civil Rules 2020 (SA). He has over 39 years of practical engineering experience, and 14 years’ experience as a forensic engineer.

8. Mr Deek’s report comprises 32 pages, with a further 32 pages of annexures. It was very thorough. He explained that he had not inspected the site, and that his report was based on information supplied by his client, and later, by Mr Renfors.

9. On the first day of the trial Mr Renfors made a number of factual assertions which differed from the facts set out in Mr Deek’s original report. Mr Renfors’ factual analysis is contained in Exhibit 27.

10. The Judicial Registrar adjourned the trial so that a supplementary report could be prepared which considered Mr Renfors’ assertions. This supplementary report is dated 16 October 2023 and is FDN 42. In his supplementary report Mr Deek dealt with all of Mr Renfors’ assertions and concluded that none of them caused him to alter his earlier opinion, which was:

    ·    The existing stormwater drain, prior to the work performed by the council, was inadequate to cope with a 1:15 year rain event because the pipe size (100mm) was non-compliant with mandatory standards; (para 4.17)

    ·    The existing stormwater drain, prior to the work performed by the council was “just adequate” to cope with a 1:5 year rain event, and the reason why there had been no flooding in the past 27 years is that the rainfall had never reached the intensity of 12 November 2022 during that time; (para 4.27.(8))

    ·    The work performed by the council, in which the internal diameter of the outlet pipe was reduced to 90mm over the last 500mm as it crossed the footpath would have had a “negligible” effect on the outcome which occurred on 12 November 2022. (para 4.30)

11. The Judicial Registrar concluded:

    [16]I recognise that Mr Renfors undertook a detailed investigation into his stormwater system after receiving Mr Deek’s first report, however, for the reasons set out at paragraph 4.27 of Mr Deek’s second revision of his report issued on 16 October 2023 (FDN 42), I prefer Mr Deek’s evidence ahead of Mr Renfors’ analysis.

12. The clear implication to be drawn from the Judicial Registrar’s ex-tempore remarks is that he was not satisfied on the balance of probabilities that the alteration made to the drain outlets by the council were causative of the flooding to Mr Renfors’ property. The flooding was caused by the overall inadequacy of the stormwater drainage system and the 1:15 years rain event on 12 November 2022.

13. At the hearing of the Minor Civil Review on 8 February 2024, Mr Renfors’ submissions repeated in substance his factual assertions in Exhibit 27, and argued that Mr Deek was wrong and that his evidence should have been rejected by the Judicial Registrar, and that his opinions should be preferred. I decline to do so. The Judicial Registrar’s findings were soundly based on credible, well-researched, and what he found to be “impressive” evidence.[1] The plain facts are that Mr Renfors does not have the expert knowledge and experience demonstrated by Mr Deek.

    [1]    Renfors v Alexandrina Council [2024] SAMC 6, [11].

14. Nothing I heard during the Minor Civil Review hearing would cause me to disagree with the Judicial Registrar’s findings.

15. The application for review is dismissed.

16. Mr Renfors also argued that the Judicial Registrar’s order that he pay $1,000.00 towards the costs of the council should be reversed. I consider that the order was a very reasonable one, especially since Mr Morris, the CEO of the council, told me that the costs incurred by the council in defending Mr Renfors’ claim were about $50,000.00. Mr Renfors’ application to review the Judicial Registrar’s order for costs is also dismissed.