Shahin v Raedel - [2016] SADC 137

District Court of South Australia
(Civil)
SHAHIN v RAEDEL & ANOR
[2016] SADC 137
Reasons for Decision of His Honour Judge Slattery (ex tempore)
2 November 2016
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS
Trial of the claim and cross claim between parties who are neighbours set for hearing on 5 December 2016. By consent the plaintiff was granted leave to deliver a proposed further statement of claim that was to include pleadings of further material facts.
On 28 October 2016 the plaintiff delivered a proposed amended statement of claim that pleaded further material facts as well as an unannounced new claim for nuisance alleged to arise from the fitting by the defendants in September 2016 of a security camera on the exterior of their home. The operation of the camera was alleged to have substantially interfered with the plaintiff’s use and enjoyment of his land. The defendants opposed leave being given to the plaintiff to plead this further cause of action in nuisance.
The plaintiff reported the defendants to the Police in connection with the operation of the camera. A breach of s 26D Summary Offences Act has been alleged by the plaintiff against the defendants. The complaint remains under investigation by the Police.
Whether in the exercise of its discretion the Court should permit the plaintiff to have leave to file and deliver a pleading containing this new cause of action (that allegedly arose after the date of commencement of the action) so soon before trial.
Whether in light of the complaint made to the Police, the Court should of its own motion stay the civil proceedings until the criminal matters have been resolved.
Consideration of the factors to be taken into account by the Court in the exercise of its discretion.
Whether and if so on what basis the Court should have regard to the fact that the action is between neighbours which action has generated a high level of acrimony.
Whether and if so on what basis the plaintiff should be given leave to file a pleading so close to trial that raises a cause of action that came into existence only after the commencement of the proceedings.
Held:
1. Application allowed and leave granted to file and deliver an amended statement of claim in the form of Exhibit JSW-75 to the affidavit of Jamie Scott Watts sworn 28 October 2016 (FDN48) upon the following terms:
1.1 The defendants have until 14 November 2016 to file and deliver any amended defence and counterclaim.
1.2 The plaintiff is to file any reply and defence to counterclaim by close of business on 16 November 2016.
1.3 The trial book and certificate of readiness are to be filed by close of business 18 November 2016.
1.4 The plaintiff is to pay the defendants' costs of the application and any costs thrown away.
1.5 Liberty to the defendants to make any application for the determination of the amount of these costs and the timing of the payment of those costs.
1.6 The trial date is amended from Monday 5 December 2016 to Wednesday 7 December 2016.
1.7 Liberty to all parties to apply.
1.8 Directions hearing adjourned to 22 November 2016 at 8.45am.
2. There is no basis currently that requires the Court of its own motion to make an order for the stay of the civil proceedings.
District Court Rules 6R 54(4)(a), 6R 105; Summary Offences Act s 26D, referred to.
Flegg v Hallett [2015] 1 Qd R 191; McMahon v Gould (1982) 7 ACLR 202; Raciti v Hughes Supreme Court of New South Wales, Equity Division, dated 19 October 1995 in action 3667 of 1995; Gee v Burger [2009] NSWSC 149; Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59; Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; Cement Australia Pty Ltd v ACCC (2010) 187 FCR 261; Eshelby v Federated European Bank [1932] 1 KB 254; Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd (No. 2) [2011] SASC 92, discussed.
Coutts & Co v Duntroon Investment Corporation Ltd [1958] 1 All ER 51; Baldry v Jackson [1976] 2 NSWLR 415; Wigan v Edwards (1973) 47 ALJR 586; Sevcorp (Aust) Pty Ltd v Abgarus Pty Ltd (1995) 38 NSWLR 281, considered.

SHAHIN v RAEDEL & ANOR
[2016] SADC 137
JUDGE SLATTERY

Interlocutory application FDN 47 for orders that the plaintiff be given leave to file a second statement of claim in the form attached to the affidavit of Jamie Scott Watts filed contemporaneously on 28 October 2016 (FDN 48).
This action was commenced by summons lodged on 5 March 2015. The statement of claim was filed on the same day. A defence was filed on 12 February 2016 and a cross action counterclaim was filed on 20 May 2016. A reply and defence to counterclaim was filed on 14 June 2016. A trial date is set for 5 December 2016.
The claim between the parties involves of a number of causes of action. The plaintiff principally claims for loss of support and consequential remedies and damages arising out of the construction by the defendants long ago of a form of retaining wall on a boundary of the parties’ contiguous properties.
The defendants have filed a detailed defence that denies the plaintiff’s claim and a cross action and counterclaim raising claims for nuisance, for other remedies and for consequential relief. This is a bitterly fought dispute between two neighbours in a domestic suburban environment. The parties have attempted to mediate this dispute but without success. The costs incurred by the parties are likely to be large.
In orders made by me on 10 October 2016, the plaintiff, if so advised, was required to bring in an application to amend his statement of claim. He did so by application dated 28 October 2016. At the time that I made the orders on 10 October 2016, I understood from matters that were put to me from the bar table that the plaintiff’s proposed further pleading would enable the parties to better understand the causes of action being pleaded through the inclusion of more explicit material facts and other matters pertaining to experts' reports that were to be obtained shortly. The expression “more explicit material facts” refers to the need identified by the plaintiff to better elucidate his pleaded case. In turn this recognised that his pleadings to that time were acknowledged to be deficient for a number of reasons. Perhaps most important was the need to plead support for a number of propositions that required reference to a number of experts’ reports. In part, this is what has occurred in the plaintiff’s proposed pleadings.
At the time of the discussion between bench and bar, there was no suggestion that there would be some other cause of action pleaded.
The plaintiff’s proposed statement of claim is Exhibit JSW75 annexed to the affidavit of Mr Watts. Consistent with my understanding at the time that I made the orders, the statement of claim apparently sets out further pleadings of a number of material facts. I also accept and it does not appear to be in contention that this proposed pleading narrows the focus of the causes of action pleaded initially by the plaintiff. It also pleads causes of action in negligence in proposed paragraph 33 and a further cause of action of nuisance from proposed paragraph 50.
The defendants raised no opposition to some of these proposed pleadings: they neither opposed nor consented to the amendments which clarify the existing causes of action or the addition of the plea of the cause of action in negligence. That is easy enough to follow because the pleaded facts in any event might give rise to a cause of action in negligence. It is a remedy that the court could grant notwithstanding such a cause of action had not been specifically pleaded; this all depends on the pleaded material facts and the facts proven in evidence. The position is quite different in relation to the plea from paragraph 50.
In summary, that plea arises from the fact that at or about 28 September 2016 the defendants installed a replacement CCTV camera under the south-eastern and front upper storey eave of their home. It allegedly is directed at the plaintiff’s property. It is alleged to be an actionable nuisance. The application to plead this actionable nuisance in terms of paragraphs 50-60 of the proposed statement of claim was opposed. The detail of the defendants’ objections are set out in the sixth affidavit of Sean Anthony Ryan sworn 1 September 2016 that has been read in support of the opposition of the defendants.
In that affidavit Mr Ryan sets out his instructions from the defendants. In paragraph 17 and paragraph 23 he then sets out the reasons why the defendants contends that this amendment to the pleadings should not be allowed. He avers that the amendment will adversely affect the defendants’ proper conduct of the proceedings and he sets out a number of those reasons for that contention.
The first reason is that he needs to obtain instructions and he would need to understand those instructions. This is a little difficult to comprehend. The issue is not the installation of the camera. It is whether the operation of the camera in some way substantially interferes with the plaintiff’s use and enjoyment of his land. The issue then is the operation and purview of the camera.
The second reason is that the defendants would need to receive legal advice from him about the pleaded cause of action. I have the same difficulty with that submission. The integers of the tort of nuisance are well understood and these pleadings do not appear to break any new ground. My understanding from the submissions is that the defendants contend that there is no factual basis for the plea because the interference which the plaintiff apprehends (without any formal proof) does not occur through the use of this camera. The point then is quite a narrow one of fact.
The third reason is that the defendants would need to file an amended defence or counterclaim. Staying with that point, it is difficult to see why or how a counterclaim would need to be amended and no basis was suggested. No doubt the defence would need to be amended and my understanding is that this will involve largely issues of fact that are now well understood and are within the grasp of the defendants. That said, I have taken that matter into account.
The fourth reason is that the solicitors would need to seek independent advice from an expert technician in relation to security cameras. I accept that submission but as the camera has only recently been installed, it is reasonably obvious that the people involved in the installation of the camera would be able to provide such independent advice. Mr Ryan does not make clear what advice would be sought. I will assume that advice must be sought on such things as the operational scope of the camera, its use and the objectively available evidence of its use. There was no submission put to me that this material was not freely available. That seems to be the likely position in light of the known timing of the installation of the camera.
The fifth reason put forward is that Mr Ryan says that he would need an expert report. It is unclear why an expert report would need to be obtained. On reflection, it seems that the technical expertise about the camera would be available through the installation and technical support people. More important is the fact of proof of the operation of the camera and its purview generally. These are largely questions of fact.
The sixth reason is that the defendants would need to make further disclosure about the installation of the camera. This will address matters pertaining to the proposed plea of the plaintiff. That is correct but from the information before me, that does not seem to be a difficult or time consuming task. It is all within the power of the defendants.
The seventh reason was the possibility of mediation or some attempt to resolve the matter. In light of the history of this matter I give that reason no weight. The parties to these proceedings have taken what objectively may be described as extreme positions. That is not to be understood as a criticism of the parties but only reflects their choices. There is an identifiable level of heightened animus between the parties sufficient for me to be satisfied that there is no prospect of any successful mediation about this issue. And there is nothing to stop these parties who are advised by competent solicitors and counsel from entering negotiations to resolve this issue in the meantime.
The eighth reason is that Mr Ryan would need to prepare his clients for trial including the preparation of all evidence concerning this pleading. I accept that submission but it is not clear from the material before me what further work over and above that already done is required. No doubt clear instructions will need to be taken about the camera, its installation, its operation and then its operational history. It is difficult to foresee that process involving a substantial period of time for a solicitor with the skill and experience of Mr Ryan and as guided by his counsel.
One matter for consideration and a factor to be weighed in the balance is that in the defendants’ cross action of 20 May 2016 there are at least three and perhaps four separate claims in nuisance brought by the defendants against the plaintiff arising from the use by the plaintiff of his property that allegedly affect or substantially affect the enjoyment of the defendants’ use of their own property. To be clear, the only relevance of that matter is that the question of the tort of nuisance will be an issue for the courts to decide in any event.
The affidavit of Mr Ryan also exhibits a number of letters, emails and other material. They are set out in Exhibits SAR40, SAR41 and SAR42. Exhibit SAR42 consists of a number of documents but the first is a letter from the plaintiff to the male defendant. It is worded in an unfortunate way. Its content reflect the position of mutual intransigence that has been reached between these parties. At the bottom of the document the plaintiff says he has reported the defendants to the police for video, taping and recording minors. He refers to the Summary Offences Act s.26D[1] which creates the offence of indecent filming of a person who is a minor or any other person. He then goes on to allege that he knows that the defendants have filmed his front yard and that such filming occurred when the plaintiff's children were playing in the front yard, sometimes in their nappies and once when a son was naked. There are a number of allegations then contained in the email. It ends with this sentence “You are involved in education and is engaged in this behaviour?” This is a quite extraordinary statement and carries the natural meaning of an assertion of egregious misconduct by the defendants.
[1] 26D—Indecent filming
(1) A person must not engage in indecent filming.
Maximum penalty:
(a) if the person filmed was under the age of 17 years—$20 000 or imprisonment for 4 years;
(b) in any other case—$10 000 or imprisonment for 2 years.
(2) It is a defence to a charge of an offence against subsection (1) to prove—
(a) that the indecent filming occurred with the consent of the person filmed; or
(b) that the indecent filming was undertaken by a licensed investigation agent within the meaning of the
Security and Investigation Agents Act 1995 and occurred in the course of obtaining evidence in connection with a claim for compensation, damages, a payment under a contract or some other benefit.
(3) A person must not distribute an image obtained by indecent filming.
Maximum penalty:
(a) if the person filmed was under the age of 17 years—$20 000 or imprisonment for 4 years;
(b) in any other case—$10 000 or imprisonment for 2 years.
(4) It is a defence to a charge of an offence against subsection (3) to prove 1 or more of the following:
(a) that the person filmed—
(i) consented to that particular distribution of the image the subject of the offence; or
(ii) consented to distribution of the image the subject of the offence generally; or
(b) that the defendant did not know, and could not reasonably be expected to have known, that the indecent filming was without the person's consent; or
(c) that the indecent filming was undertaken by a licensed investigation agent within the meaning of the Security and Investigation Agents Act 1995 and occurred in the course of obtaining evidence in connection with a claim for compensation, damages, a payment under a contract or some other benefit and the distribution of the image was for a purpose connected with that claim.
The correspondence exchanges occurred because of a letter sent by the plaintiff’s solicitor Crawford Legal of 19 October 2016 to the defendants’ solicitor FBR Law. That letter is part of Exhibit SAR40. SAR41 is the response to that letter sent by the defendants directly to Crawford Legal. It is not necessary to canvass the full contents of the letter; there is a clear denial in the letter that what is alleged against the defendants has in fact taken place. My reading of that letter is that it is an emphatic denial and suggests that the use of the camera is only for the surveillance of the property of the defendants.
Part of Exhibit SAR42 is a note of a report made to the police by the plaintiff concerning these events. There is a police file number and the police have taken the matters sufficiently seriously to open this file. I consider that decision of the police to be appropriate because there may well be an inherent expectation that the matter of the complaint will be taken further. That judgment can reasonably be made in light of the parties’ history.
The fact that the matter has been reported to the police raises an issue for my consideration concerning whether, in light of the fact that the matter is still under police investigation, it is appropriate for a civil claim to be commenced or continued. It may once have been thought that those circumstances were a bar to the civil matter proceeding but my reading of the authorities suggests that this, if it was applied in these circumstances, is no longer appropriate or necessary.
The most recent decision on these issues is that of Flanagan J in the Supreme Court of Queensland in Flegg v Hallett.[2] His Honour commences the relevant discussion at [28] and adopts the approach of Wootten J in McMahon v Gould.[3] There are a number of principles enunciated in the judgment of Wootten J and I do not need to consider all of them. It is sufficient to say that the correct approach is that it is a grave matter to interfere with an entitlement of a party to bring a civil proceeding by a stay of proceedings. Any stay must be justified on proper grounds. Second, neither an accused nor the Crown are entitled as of right to have the civil proceedings stayed because of a pending or possible criminal proceeding. Third, the court is required to balance justice between the parties taking into account all relevant factors. Fourth, one relevant factor is the accused's right of silence but that right of silence does not extend to give such a defendant as a matter of right the same protection in contemporaneous civil proceedings.
[2] [2015] 1 Qd R 191.
[3] (1982) 7 ACLR 202.
The rule is that a plaintiff in a civil action is not debarred from pursuing an action in accordance with the normal rules merely because to do so would or might result in the defendant, if he wished to defend the action, having to make disclosure and pleading his defence, including what his defence is likely to be in the criminal proceeding. Finally, the court should consider whether there is a real and not only a notional danger of injustice in the criminal proceedings.

I consider that when regard is had to the contents of the affidavit material and the exchanges of correspondence between the parties, there is only a notional (if any) danger of injustice in any future criminal proceedings if this civil proceeding went ahead. I have weighed those matters in the balance in coming to my decision.
The affidavit material filed in Court discloses that the camera was fitted in September 2016. The allegations of the plaintiff are therefore not based on any known facts in the possession of the plaintiff prior to that time and an ordinary reading of the pleadings suggest that they appear to be based on a series of presumptions. That tentative view is confirmed when regard is had to the correspondence. There was no investigation summons brought by the plaintiff under 6R 32 and to that extent, at least, some of the allegations by the plaintiff are conjecture.
In that background I turn to consider the test under 6R 54(4)(a).
It is first appropriate that I set out the terms of the amendment proposed by the plaintiff from paragraph 50. Those proposed paragraphs are as follows:-
Camera
50. On or about 28 September 2016, the Defendants installed a “pan, tilt, zoom” (“PTZ”) camera (“the Camera”) under the south-eastern and front upper story eave of their house located on the Raedel Property. The Camera is installed such that it has a commanding view and unrestricted vision of the Shahin front yard.
51. Camera is a very expensive and sophisticated device not usually fitted to home security systems or used in residential areas. It has significant and sophisticated magnification, zoom and tilt capability.
52. The Camera is positioned in such a way that the Camera:
52.1 Has a clear view of the following areas of the Shahin Property. The entire front yard area, the side access area along the Fence, part of the back yard area visible from the location of the Camera when aimed along the Fence and the master bedroom window at the front of the Shahin Property (the “Surveillance Areas”); and
52.2 Is connected to a video recording device that can record what the Camera observes in the Surveillance Areas.
53. The Surveillance Areas are not viewable by members of the public from public areas outside the Shahin Property.
54. The Camera:
54.1 In addition to a programmed pattern of surveillance that is automatically traversed by the PTZ Camera, it has the capacity to:
54.1.1 Be manually controlled by the Raedels and can be directed to view, and has the capacity to record, manually controlled and targeted areas within the Surveillance Areas; and
54.1.2 Have its data in the form of vision from manual control recorded and stored.
54.2 Has infrared capabilities such that it can view, and has the capacity to record, the Surveillance Areas at night.
55. The Raedels have caused the Camera by manual operation and by programed automatic operation, to regularly traverse by using its PTZ functions the Surveillance Areas.
56. The Plaintiff, as owner of the Shahin Property, has the right to enjoyment of the Shahin Property.
57. Prior to the installation of the Camera, the Plaintiff and his family had full enjoyment of the Surveillance Areas.
58. Since the installation of the Camera, the Plaintiff has observed on regular occasions the Camera conducting automatic and/or manually controlled surveillance in the Surveillance Areas, such that he and his family cannot use the Surveillance Areas, in the way in which they had before without surveillance being conducted. Accordingly, the Camera is invasive and a nuisance.
Particulars
58.1.1 On 13 October 2016, the PTZ function of the Camera was being operated at time when the Plaintiffs very young toddler son was in the front garden area playing in the sprinkler water without clothing; and
58.1.2 The Camera continues to be operated 24 hours a day in the Surveillance Areas, when there is no genuine reason for the Raedels to do so.
59. The Raedels by letter dated 19 October 2016, were requested by the Plaintiffs solicitors to remove the Camera or to have its operation electronically restricted to conduct surveillance on their own land and/or destroy recordings of vision from the Camera. By response on 26 October 2016, the Raedels refused the requests.
60. In the circumstances, the Defendants’ installation and use of the Camera amounts to a substantial degree of interference with the Plaintiff’s enjoyment of the Shahin Property and is a nuisance.
Part 3: Remedies and ancillary remedies
61. The remedies sought are:
…
On the authorities that bind me I should ensure that the proposed amendment is arguable and in making my decision, I am not required to determine the actual issue raised on the pleadings. I am only to have regard to what is shown on the fact of those pleadings. If I am satisfied that the cause of action is arguable there is then the question of whether or not I should exercise my discretion to allow the amendment. The plaintiff referred to a number of authorities which he submitted resolves any doubt about there being an arguable cause of action. They are considered below.
The case of Raciti v Hughes, a decision of Young J in the Supreme Court of New South Wales, Equity Division, dated 19 October 1995 in action 3667 of 1995, concerned flood lights that operated upon a movement detector which also then in turn brought into operation a camera so that persons moving around in a neighbouring backyard would trigger the floodlight and the camera. His Honour accepted on a demurrer, (that accepting the facts as shown on the face of the pleadings, no cause of action arose) that the surveillance and accompanying recording by video camera of what occurs in the plaintiff's backyard got sufficiently close to “watching and besetting” for an actionable nuisance. The demurrer failed on that aspect. His Honour granted an injunction but there was still to be a hearing on the substantive issue which was not then finally decided. Young J said that as a general rule, what one can see one can photograph without it being actionable. There are exceptions to the general rule. One includes the ability to photograph people in embarrassing situations. The general rule does not apply when the action is combined with some other effect. These are questions of fact.
The decision of McLaughlin AsJ in Gee v Burger[4] does not take the matter much further. This case concerned the operation of the defendant’s video camera on an access road used by the plaintiff and which belonged to the defendant; the plaintiff alleged a nuisance arising from the use of the camera. His Honour did not consider that the plaintiff should be deprived of the opportunity of arguing such a cause of action in light of the facts which were ultimately to be established by admissible evidence at the final hearing. This is another restatement of the usual reticence of all courts to strike out matters as disclosing no cause of action. McLaughlin AsJ thoroughly discussed all of those authorities in his Honour's judgment from paragraphs [20] and following.
[4] [2009] NSWSC 149.
One reason why I think that the proposed pleading from paragraph [50] is weak is because on the facts as pleaded it is difficult to see that the defendants are doing any more than attempting to protect their own property by the use of this technology. Adopting the expression used by Young J in Raciti, it will be necessary for the plaintiff to prove on balance that the conduct of the defendants is sufficient to amount to “watching and besetting”. The conduct complained of seems to fall short of this description.
I turn first to the cause of action.
I consider that the proposed pleading from paragraph 50 raises only an arguable cause of action. I have had regard to the authorities that have been provided to me by the plaintiff and other authorities. These authorities do not in any way change my preliminary view that this cause of action is quite weak. These are all matters for judgment in the whole of the circumstances of the case. The authorities on the issue of amendment indicate that if no or no arguable cause of action is disclosed on the face of the proposed pleading then leave should be refused. Similarly, if the proposed pleading, though disclosing an arguable cause, is so lacking in supporting material facts or the pleaded material facts lack any or sufficient cogency then leave should be refused. These statements are deliberately broad as such applications will often largely turn on questions of fact which in the end are matters for the trial Judge. The weight of them usually are not assessed at this juncture.
On the exercise of discretion, the authorities which bind me in my consideration of this matter are the decision of the High Court in Aon Risk Services Australia Limited v Australian National University[5] as summarised and applied by the Full Court of the Supreme Court of South Australia in Channel Seven Adelaide Pty Ltd v Manock.[6]
[5] (2009) 239 CLR 175.
[6] [2010] SASCFC 59.
The facts in Aon Risk Services are well known and do not need to be rehearsed here. It is notorious that the High Court rejected an approach to an amendment application which may have assumed a right to make amendments subject to the Court being satisfied that the causes of action now to be pleaded were arguable and the applicant for amendment making payment of costs thrown away. Such an approach may have been derived from the decision of the High Court in Queensland v JL Holdings Pty Ltd.[7] In Aon Risk Services, French CJ and Heydon J wrote separate judgments as did the plurality, Gummow, Hayne, Crennan, Kiefel and Bell JJ.[8] The principles to be derived from the discussion in the Aon Risk Services decision are now well known. It is necessary to do justice between the parties and to have consideration to the stage of the proceedings at which the amendment is sought to be made. It is also necessary to have regard to the impact of the proposed amendment upon the progress of the litigation, especially the trial as well as the additional strain imposed upon the opposing party and its witnesses as a result of any disruption or delay in the progress of the proceedings. Regard must also be had to the impact of the disruption of the progress of proceedings upon other users of the Court system, Judicial and Court resources as well as public confidence in the just and efficient resolution of legal proceedings. I refer in particular to the judgment of French CJ at [4]-[6], the judgment of the plurality at [98]-[193] and the judgment of Heydon J at [137]. Again it is not necessary that I rehearse each of those judgments here.
[7] (1997) 189 CLR 146.
[8] It may be noted that Kiefel J was the trial Judge at first instance in the Queensland v JL Holdings Pty Ltd decision. In that case her Honour refused leave to amend but her Honour’s decision was overturned on appeal.
The Federal Court has on a number of occasions expressed views about the breadth of the decision in Aon Risk Services. Keane CJ (as his Honour then was) in the Federal Court decision of Cement Australia Pty Ltd v ACCC[9] said that the Aon decision is “…not a one size fits all case…” His Honour emphasised that weight must be given to a number of factors and this weight will vary depending upon the facts of the individual case. These comments of Keane CJ are not inconsistent with the views expressed by the High Court that regard must be had to the factual circumstances of the case when the Court makes its decision. It is not possible to describe the range of those factual circumstances and the weight to be given to them and it would be unwise so to do. At the same time, it must be recognised that the decision of the High Court is the template against which any decision by a lower Court on such an application is to be made and this is the approach adopted by the Full Court in its decision in Manock.
[9] (2010) 187 FCR 261.
The correct approach is to assess the various factors according to the requirements of the decision in Aon. Those factors are helpfully set out in the decision of Bleby J in Channel Seven Adelaide Pty Ltd v Manock.[10]
[10] [2010] SASCFC 59.
It is also necessary that I have regard to 6R 105 under which the Court is required to give consideration to whether it permits a pleading of a later cause of action. That Rule reads as follows:-
105—Court's permission required if pleading raises later cause of action
(1)     A pleading may refer to events occurring before or after the date of the commencement of the action to which the pleading relates.
(2)     However, a pleading cannot raise a new cause of action based on events occurring after the commencement of the action unless the Court—
(a)     is satisfied that the new cause of action can be included without injustice to another party; and
(b)     gives its permission.
The operation and intent of this Rule is to override the effect of the rule in Eshelby v Federated European Bank[11] as explained by White J in Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd (No. 2).[12] White J said the following in relation to 6R 105(1) and (2) at [35]-[40] as follows:-
[35] These submissions make it appropriate to say something about the kind of injustice to which r 105(2) refers.
[36] Rule 105(1) applies to all pleadings, including statements of claim, defences, replies, and pleadings on cross actions. It establishes as a general rule that any pleading, whether in a primary or secondary action, may refer to events occurring after the commencement of the action. It is implicit in this general rule that the mere fact that a pleading refers to some event occurring after the commencement of the action should not be regarded, of itself, as inappropriate or as productive of injustice. Subrule (2) is a qualification on the general rule. It makes the pleading of a new cause of action based on events occurring after the commencement of the action subject to the permission of the Court and limits the circumstances in which the Court may grant that permission.
[37] Rule 105 appears intended to exclude the application of the rule that a cause of action must be complete at the commencement of an action, and that an amendment to plead a new cause of action which could not have been pleaded when the action was commenced is impermissible.[13] In part this rule was based on the view that a right had to exist before it could be sued upon, and in part on the view that an amendment to raise a cause of action which had arisen only after the commencement of the proceedings would not be an amendment at all, but the advancement of a new cause of action which is more appropriately the subject of a fresh action. The rule also appears to have been influenced by the former understanding that all amendments to a pleading were to be understood as having taken effect from the time when the pleading was first filed.[14] That understanding is no longer valid as courts now have more flexibility under modern procedural regimes in that respect. The prohibition on including causes of action which were based on events occurring after the commencement of the action produced a number of inconvenient consequences and its utility was questioned.[15]
[38] Whenever a new cause of action is added by amendment, there is the potential for some prejudice to the opposing party. That is so whether the events giving rise to the new cause of action arose before or after the commencement of the action. The fact that the limitation in sub-r (2) applies only in the case of causes of action based on events arising after the commencement of the action suggests that the injustice to which it refers is of a particular kind, namely, the injustice which may result from a party having to address a cause of action which could not have been pleaded when the proceedings were commenced and which cannot be addressed by an order that the amendment take effect from a date after the commencement of the original proceedings. Otherwise, there would be no reason for the rule to distinguish between amendments based on events occurring, say, one week before the commencement of the action, and amendments based on events occurring, say, one week afterwards.
[39] An injustice of this kind may arise from a variety of circumstances. It may arise, for example, from a change of position by a party in reliance on the existing pleadings, or from a party being deprived of the benefit of some essential procedural step before proceedings could be commenced, or from the potential for a delay to the determination of an existing dispute. However, whatever be the nature of the detriment, it seems that it should be one which would arise from the other party having now to meet a cause of action which could not have been raised when the action was first commenced, and not simply from having to meet a new cause of action.
[40] Understood in this way, the circumstances which may give rise to an injustice for the purposes of r 105(2) and which may therefore preclude the grant of permission to amend are of a limited kind. This does not mean that the general discretionary considerations to which Quasar and Heathgate referred are immaterial. They are pertinent to the exercise of the general discretion to amend but not all of them suggest the kind of injustice to which r 105(2) refers.
[11] [1932] 1 KB 254.
[12] [2011] SASC 92.
[13] Eshelby v Federated European Bank Ltd [1931] 1 KB 254 at 260; Coutts & Co v Duntroon Investment Corporation Ltd [1958] 1 All ER 51 at 53; Baldry v Jackson [1976] 2 NSWLR 415 at 417-8.
[14] Wigan v Edwards (1973) 47 ALJR 586 at 596.
[15] Sevcorp (Aust) Pty Ltd v Abgarus Pty Ltd (1995) 38 NSWLR 281 at 283-4.
I refer in particular to paragraph [39] of his Honour’s judgment. On the material before me, there is no suggestion that there has been any change of position by the defendant parties in reliance upon the existing pleading. Nor is there any suggestion that a party is being deprived of the benefit of some essential procedural step before proceedings could be commenced or from the potential for a delay to the determination of an existing dispute. This view derives from the fact that I am satisfied that this amendment can be made and dealt with in short order and certainly prior to trial. There is also no evidence before me which would indicate that the defendant parties would now have to meet a cause of action which could not have been raised when the action was first commenced. This cause of action, on the plaintiff’s case, did not arise until September 2016.
Referring then to settled authority on the operation of 6R 54 particularly since the decision of the Full Court in Manock: there has been no delay in this matter in seeking an amendment. The only question is whether the late amendment could prejudice the position of the defendants. That consideration turns on a number of features including the importance of the proposed amendment and the extent to which it may raise new issues of fact or law. I have earlier mentioned that in the defendant’s cross action, there are three and perhaps four separate complaints based upon the tort of nuisance and the question of a determination by the Court about the tort of nuisance is necessary in any event. To that extent, the amendment does not raise new issues of law but it certainly raises new issues of fact. The question for my consideration in those circumstances is whether those new issues of fact can be dealt with satisfactorily prior to trial. For the reasons that I have already set out, I think the answer to that question is yes.
I have also earlier considered whether or not the amendment is arguable. I have expressed the view that although the case disclosed in the proposed amendment is quite weak, it is arguable. This is not the place to attempt to reach some view about the merit of the proposed amendment. It only needs to reach the level of being arguable.
The litigation is due to commence on 5 December 2016. This is a very late application. It will impact upon the progress of proceedings and will be disruptive to the defendants to some extent. It may be disruptive to the trial. I have taken that matter into account. As is usually the case in these types of applications, the proposing party for the amendment attempts to treat the submissions of the responding party about the matters to be taken into account in a slightly derisory and almost dismissive way whereas the responding party usually attempts to enlarge the effect of the proposed amendment in a way that is usually not that informative. This case is no exception. My task is to attempt to assess the matter on a basis which is as objective as possible. The view that I have reached is that although the amendment will likely impact upon and disrupt the progress of some part of the proceedings, it would not do so in such a way that would so prejudice the defendants that the application ought to be refused. Later in these reasons I will further expand upon this matter because I think there is another overriding consideration which is the need for finalisation of the disputes between neighbours.

I do not think that much emphasis can be placed upon the question of the delay or the explanation for the application to amend or its timing. The plaintiff asserts that the cause of action did not arise until September 2016. The relevant issues under this head are canvassed under the aegis of the stage at which the litigation has reached. Similarly the plaintiff could not have had an opportunity to plead the case earlier because, on the plaintiff’s case, the cause of action did not arise earlier.
I am satisfied that all questions of costs are addressed by orders for costs in the favour of the defendants. I am also satisfied that there will be no delay or disruption to the proceedings except perhaps for a delay of one or two days in the commencement of the proceedings. I have suggested to the parties that it is preferable that rather than commence the proceedings on 5 December, the commencement date to be changed to 7 December. With any amendment, there will be an increased strain of litigation. That is a matter of a comparative judgment and that is because all litigation produces a level of strain and uncertainty. This affects the parties and their witnesses. I do not think that a 2 day delay in the commencement of a trial is so significant as to place a sufficient level of uncertainty and strain on the parties and their witnesses requiring the refusal of the application for amendment. I have similar views about the impact of the delay and the disruption upon Judicial and Court resources. I do not think that a 2 day delay is so significant as to refuse the amendment. Similarly, I cannot see that a 2 day delay in the commencement of the proceedings will have an impact upon the public’s confidence in the just and efficient administration of justice.
I earlier mentioned another overriding consideration which I think applies in this matter. The cross action counterclaim is broadly based and makes claim by the defendants against the plaintiff on a number of issues all of which need to be resolved by the Court in this trial. That cross action counterclaim confirms that these parties, who are neighbours, are at extreme loggerheads: there is a large degree of intransigence between them in this neighbourhood dispute. I think that public policy considerations to some extent must weigh in the balance of the exercise of my discretion in this matter. One of those considerations is that, as far as possible, all disputes between litigants and especially neighbours must be resolved once and for all. Looking again at the second of the Manock considerations, I consider that there would be a waste of public resources in failing to grant this amendment in circumstances where, to send the plaintiff’s fresh allegation about nuisance off for a further trial between the same people in a different Court, would exacerbate a very regretful situation. This also has an effect upon the strain and uncertainty imposed on litigants. I think there would be a greater likelihood of strain and uncertainty being imposed on litigants if this matter was to be sent off for separate trial between the same parties. I have observed the behaviour of the parties in this Courtroom during the arguments before me as also have I observed the conduct of the action during the interlocutory phase of this action. There is a very high level of strain between the litigants already existing that is also apparent from a reading of the material on the Court file.
I consider that the interest of the administration of justice favour the resolution of all of the issues between these parties in one trial in this very hard fought action in which there has been very little, if any, give and take between the parties. Having read closely the copies of the correspondence passing between the representatives of the parties shown on the Court file, it is my view that the heat and intransigence in this action has been generated by the behaviour of both parties. It is an empty exercise to attempt to apportion blame. Equally, the consideration of another proceeding being available to be commenced between the litigants carries much less weight. I accept that a separate action could be commenced in the Magistrates Court but that would only be to force the parties into another action and a further dispute between them. I think that the overriding interests of justice in this matter are that all matters in dispute between the parties should be litigated once and for all.
I would therefore grant leave to file and deliver the amended statement of claim in the form of Exhibit JSW-75 to the affidavit of Jamie Scott Watts sworn 28 October 2016 (FDN48) upon the following terms:-
1The defendants have until 14 November 2016 to file and deliver any amended defence and counterclaim.
2The plaintiff is to file any reply and defence to counterclaim by close of business on 16 November 2016.
3The trial book and certificate of readiness are to be filed by close of business 18 November 2016.
4The plaintiff is to pay the defendants' costs of the application and any costs thrown away.
5Liberty to the defendants to make any application for the fixation of the amount of these costs and the timing of the payment of those costs.
6The trial date is amended from Monday 5 December 2016 to Wednesday 7 December 2016.
7Liberty to all parties to apply.
8Directions hearing adjourned to 22 November 2016 at 8.45am.