Selective Smash Repairs Pty Ltd v Victoria Wool Processors Pty Ltd (No 3)
[2005] VSC 170
•19 May 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 4696 of 2002
| SELECTIVE SMASH REPAIRS PTY LTD (ACN 006 350 170) | Plaintiff |
| v | |
| VICTORIA WOOL PROCESSORS PTY LTD (ACN 050 032 356) | Defendant |
---
JUDGE: | HARPER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 4 MARCH 2005 | |
DATE OF JUDGMENT: | 19 MAY 2005 | |
CASE MAY BE CITED AS: | SELECTIVE SMASH REPAIRS PTY LTD v VICTORIA WOOL PROCESSORS PTY LTD (No. 3) | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 170 | |
---
practice and procedure – Alleged nuisance by the defendant – Claim by the plaintiff that it has suffered loss and damage by reason of non consolidation of two parts of its business due to the nuisance – Whether, as pleaded, claim statute barred – Date of decision not to consolidate not specified in pleading - Application to stay or dismiss non-consolidation claim or to strike out that portion of the statement of claim – Rules of the Supreme Court, r.23.01, r.23.02.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W. Houghton QC with Mr P. McDermott | Battley & Co Pty Ltd |
| For the Defendant | Mr I. Stewart | Allens Arthur Robinson |
HIS HONOUR:
By summons issued on 25 February 2005, the defendant sought orders pursuant to r.23.01, or alternatively pursuant to r.23.02, of the Rules of the Supreme Court. Both form part of O.23, which (as is disclosed by the heading under which the order appears) concerns the summary stay or dismissal of a claim and the striking out of a pleading. Rule 23.01 empowers the Court to stay, or give judgment in, the proceeding either generally or in relation to any claim. The defendant seeks only the latter; it does not seek judgment in, or the stay of, the proceeding generally.
The claim about which the defendant is concerned is referred to in the summons as the "Non-Consolidation Claim", an expression to which I shall return. Rule 23.02 is invoked in an attempt to persuade the Court to order that that portion of the pleading in which the claim appears be struck out or amended. The orders sought by the summons are therefore orders that the non-consolidation claim be stayed; or in the alternative (to adopt the words of the Rule) that judgment be entered for the defendant "in relation to" it; or in the further alternative that that part of the pleading in which it is to be found be struck out or amended.
The Court may in its discretion exercise the powers which the defendant seeks to invoke. That discretion must, however, be exercised judicially; and then only in the circumstances to which the Rules refer. The power granted by r.23.01 only arises where a proceeding generally, or any claim in a proceeding, does not disclose a cause of action, or is scandalous, frivolous or vexatious, or is an abuse of the process of the Court. Likewise, the power granted by r.23.02 only arises where the whole or part of a pleading or an endorsement of a claim gives rise to circumstances such as those upon the basis of which r.23.01 may be invoked, or (and this is a circumstance additional to those specified in r.23.01) where the pleading or endorsement, or the impugned part of it, may prejudice, embarrass or delay the fair trial of the proceeding.
The above will, I hope, be a sufficient introduction to the relief sought by the defendant pursuant to that party’s summons of 25 February. It may be helpful next to outline the plaintiff's case for principal relief, as disclosed by its further amended statement of claim dated 22 December 2004. In October 1983, the plaintiff commenced to operate a smash repair business at Geelong Road, Brooklyn. It now conducts an auto-wrecking business as well. The two operations are related. Thus, for example, parts obtained from the process of wrecking vehicles are used in the repair of other vehicles. The plaintiff says it makes sense to conduct both businesses from the same premises. It claims that, in or about April 1990, it purchased property at 23 Little Boundary Road, Laverton North with a view to relocating its smash repair business at the new premises, and commencing its auto-wrecking business there.
The second objective was achieved, although (as the plaintiff claims) only in part. After a purpose-built workshop had been constructed at Laverton North, the auto-wrecking business was established on that site in July 1991. Later that year, however, the defendant commenced to operate a wool processing plant on the property next door, at 21 Little Boundary Road. It continued to process wool from those premises until late October 2002. In the meantime, fine wool fibres and dust vapours were emitted from the chimneys of the defendant’s plant. This (so the plaintiff argues) created a nuisance. It also necessitated a change in the plaintiff's plans. Contrary to the plaintiff’s hopes and expectations, the smash repair business could not be relocated from Brooklyn to Laverton North. Consolidation of the two branches of the enterprise could not be effected. As a consequence, the anticipated economies and efficiencies were never realised. The plaintiff claims damages from the defendant by way of compensation. Hence the “Non-Consolidation Claim”.
The writ by which this proceeding was instituted was issued on 7 March 2002, some eleven years after the defendant commenced to process wool at Little Boundary Road. In the case of a nuisance that is continuing at the time proceedings commence, the effect of the Limitation of Actions Act 1958 is to restrict to the six immediately preceding years the period within which, if the defendant takes the point, damages may be claimed. The defendant has taken the point, although its formal defence is not yet due and has not yet been filed. If the loss, or part of it, occurred more than six years before the date on which the proceeding commenced (i.e. more than six years before 7 March 1996) then the defendant may plead the Act as an absolute defence to that part of the plaintiff's claim.
So much is straightforward enough. The plaintiff itself now recognises, if it did not before, that the victim of a continuing nuisance cannot merely sit back and watch its losses increase while doing nothing about it. Quite apart from the Limitation of Actions Act, damage must - where reasonably possible - be mitigated. In the case of nuisance, that mitigation would very often include obtaining an injunction requiring the offender to cease the behaviour which created the nuisance. Apparently the plaintiff did not take this course. At all events, no injunction was obtained. According to the plaintiff, the nuisance continued, year in and year out, between 1991 and 2002. During this period, the plaintiff (as it alleges in its further amended statement of claim) deferred and deferred again a final decision on whether or not to consolidate; or, rather, it:
“… decided from time to time on numerous occasions that because it was not [then] … the time to consolidate the operations … it should keep the smash repair operation at Brooklyn. The decisions were oral and made in discussions … the … substance of which was that the emissions had not stopped and that something should be done because it was preventing the consolidation of the business which they had planned.”[1]
[1] Further amended statement of claim, paragraph 8, particular (v).
The parties must await the trial before the plaintiff’s allegations are fully tested. On the plaintiff’s own case, however, the defendant ceased operations at 21 Little Boundary Road in October 2002. Even if a claim in nuisance is made out, therefore, that nuisance must have ceased by then - and perhaps earlier. It is equally true that, if the nuisance was the reason for the plaintiff’s decision not to consolidate the two branches of its business, the considerations in favour of consolidation must have taken on renewed life when the nuisance ceased. To adapt the words of the further amended statement of claim, “emissions had … stopped and … it was [no longer] preventing the consolidation of the business which they had planned.” On this basis, one would expect that the plaintiff would move with all deliberate speed to make that consolidation a reality. Yet it seems that the plaintiff has not done that which, on its case as presently put, is to be expected. It has not consolidated the two branches of its business at the now nuisance-free site in Laverton North. Not unnaturally, the defendant has seized upon this point as powerful if not decisive evidence that the decision not to consolidate was not dictated by the alleged nuisance.
Indeed, the defendant submits that, on its own, this circumstance is decisive. But (the submission continues) when put beside other indicia, the only conclusion reasonably open is that the decision not to consolidate was made as far back as “about 1992”.[2] Given that that is indeed the case, the cause of action was then complete. The period of limitation began to run accordingly. It therefore expired in 1998, or – at the latest - the following year.[3] This was some three years before the writ was issued – there is no need for exactitude at this point, because on any view (the defendant would argue) the available time had expired by 7 March 2002. Accordingly, the “non-consolidation claim” is without substance. It should be stayed, or struck out, or judgment on the claim entered in favour of the defendant.
[2]Written submissions, dated 2 March 2005, of the defendant, para. 6.
[3]Clutha v Miller (No.3), unreported, [2002] NSWSC 642 (24 July 2002)
The plaintiff challenges this analysis. It submits that I am in no position at present to make the finding of fact that is crucial to the success of the defendant’s application. I cannot infer that, because in 1992-1993, the plaintiff expended capital on the Brooklyn site, the firm decision was then made to operate at separate locations, into the indefinite future and irrespective of the continuation of the nuisance, the two branches of the business. Nor (so the plaintiff contends) can I on the basis of the post-October 2002 failure to consolidate come to any valid conclusion about the reason for that failure. Equally, the plaintiff submits, I should reject the defendant’s submission that “the further amended statement of claim on its face reveals that the decision not to consolidate the plaintiff’s business was made in about 1992.”[4]
[4]See footnote 2.
In my opinion, the plaintiff is justified in asserting that the further amended statement of claim does not plead facts which, if true, establish that the “non-consolidation decision” was fixed in stone at a time more than six years before the commencement of this proceeding. It pleads facts which are consistent with that conclusion; but they do not compel it. It also pleads facts against which, if true, the conclusion for which the defendant contends cannot stand. I refer to the passage quoted in paragraph 7 above, and to paragraph 8(e) of the further amended statement of claim. The latter sub-paragraph alleges that the nuisance created by the defendant “[c]aused the plaintiff to decide from time to time on numerous occasions between 7 March 1996 and late October 2002 not to consolidate the smash repair business at the Brooklyn premises with the auto wrecking business at the Laverton premises.”
I have to confess that this was not an allegation anticipated by me when I delivered a judgment in this matter on 24 November last year. I then assumed, too readily, that the plaintiff had in fact decided, some time before the nuisance ceased in October 2002, against consolidation regardless of whether or not the nuisance eventually abated. I reached that assumption because relocation has not occurred; and I thought the plaintiff had in effect conceded that the relevant decision (i.e. not to consolidate) had been made. I accordingly observed that “[t]he plaintiff must fix upon the date by which, in truth, the decision to keep the smash repair business in Brooklyn was reached.”
I now understand that the plaintiff intends at the trial to call evidence to the effect that no such decision has been reached. At the very least, as I understand the plaintiff’s position, it will seek to persuade the trial judge of two things. First, that up to October 2002 each review of the position in relation to consolidation resulted in the retention of the smash repair business at Brooklyn so long as the nuisance continued. Secondly, that the long-term position remained in flux at least up to that month – the month in which the defendant ceased its operations at 21 Little Boundary Road.
I say nothing about the plaintiff’s chances of persuading the trial judge to these conclusions, or either of them. As I conceive my duty, I ought not even express any opinion about the legal consequences that would follow findings of fact consistent with the plaintiff’s allegations. What is clear, in my opinion, is that the cause of action as pleaded does not now fall foul of the Limitation of Actions Act so as to be scandalous, frivolous or vexatious, or an abuse of the process of the Court. Nor will it prejudice, embarrass or delay the fair trial of the proceeding. It may of course prolong the trial, because the plaintiff’s case will doubtless be hotly contested. That is a very different thing from saying that, as a matter of pleading, I am now in a position to hold that the fair trial of the issues will be prejudiced, embarrassed or delayed. If the trial judge thinks that the conduct of either party, as things transpire at the trial, warrants special censure, then questions of costs may be debated. Again, I say no more about that, as it is none of my business.
It may be that, at the trial, the limitations point will become clearer. Nothing I now say should be taken as inhibiting either party from making such submissions about the statute as they think warranted. I decide nothing more than that the relief sought by the defendant under r23.01 or alternatively r.23.02 is not presently available to it. The summons of 25 February 2005 must therefore be dismissed.
---
0