Tipsy Bull Pty Ltd v Foundry Enterprises Pty Ltd trading as Hopscotch Bar
[2019] ACAT 51
•11 June 2019
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
TIPSY BULL PTY LTD v FOUNDRY ENTERPRISES PTY LTD TRADING AS HOPSCOTCH BAR (Civil Dispute) [2019] ACAT 51
XD 1488/2018
Catchwords: CIVIL DISPUTE – private nuisance – alleged excessive noise – whether tribunal has jurisdiction to grant injunctive relief
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 8, 18, 53
Subordinate
Legislation cited: ACT Civil and Administrative Tribunal (Expert Witness Code of Conduct)
Procedural Directions 2009 (No 1), NI2009-642
Environmental Protection Regulation 2005 Table 2.1, 2.2
Cases cited:Abbey v Mack [2010] ACTSC 140
Ammon v Colonial Leisure Group Pty Ltd [2018] WASC 280
Campbell v Blackshaw [2018] ACTSC 39
Campbell v Blackshaw [2019] ACTCA 1Directors of St Helen’s Smelting Co v Tipping (1865) 11 HLC 642
Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482
Dunstan v King [1948] VLR 269
Grand Central Car Park Pty Ltd v Tivoli Freeholder [1969] VR 62
Robson v Leischke [2008] NSWLEC 152
Young v Hammond [2012] ACAT 30
List of
Texts/Papers cited: Laws of Australia
Tribunal:Senior Member H Robinson
Date of Orders: 11 June 2019
Date of Reasons for Decision: 11 June 2019
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 1488/2018
BETWEEN:
TIPSY BULL PTY LTD
Applicant
AND:
FOUNDRY ENTERPRISES PTY LTD TRADING AS HOPSCOTCH BAR
Respondent
TRIBUNAL:Senior Member H Robinson
DATE:11 June 2019
ORDER
The Tribunal orders that:
1.The application is dismissed.
………………………………..
Senior Member H Robinson
REASONS FOR DECISION
1.By way of this application the applicant makes a claim in private nuisance for relief from alleged excessive noise it says emanates from the respondent’s premises. The applicant seeks either orders for injunctive relief or, in the alternate, an order that the respondent undertake noise abatement works.
The parties
2.The applicant and the respondent both sub-lease commercial premises on a block in Lonsdale Street in Braddon.
3.The applicant operates a business called Tipsy Bull. The Tipsy Bull website[1] states that it is a licenced restaurant and bar. It appears to specialise in gin. It also serves a variety of cocktails and other drinks, as well as offering “friendly, fine-ish dining.” Tipsy Bull has been in operation since 2017, although the director of the applicant company appears to have previously operated another business on the site. Tipsy Bull operates Tuesday to Sunday, 12:00pm to “late.”
[1] ‘Tipsy Bull’, Tipsy Bull (Web Page)
4.The respondent operates Hopscotch Bar (Hopscotch), a licensed “gastropub.” According to the Hopscotch website,[2] it is “…one of the largest spaces in Braddon… boasting an expansive beer garden… with outdoor spit,” and serving whiskey, wine, craft beer and food and beverages. Hopscotch trades seven days a week, serving alcohol from 11:00am to 2:00am.
The hearing
[2] ‘Hopscotch Bar’, Hopscotch Car (Web Page)
5.Both parties were represented at the hearing – the applicant by Mr Markham of Adero Solicitors and the respondent by Mr Ronald of Counsel.
6.The applicant called one witness, Mr Timothy Kuschel, an Acoustic Consultant. The applicant also filed additional material subpoenaed from the ACT Government’s Environmental Protection Agency (EPA).
7.The respondent filed several witness statements from persons associated with Hopscotch. Only one of those witnesses, Ms Kate Parkinson, a director of the respondent, was called to give evidence. The respondent also sought to rely upon a statement from neighbouring business owner, Ms Chen.
The applicant’s case
8.The applicant says that the respondent has on several occasions breached the Statutory Noise Levels (SNL) established under the Environmental Protection Regulation 2005.[3] The applicant contended, and the respondent did not dispute, that the SNL for the block are 55dB(a) during the day and 45dB(a) at night.
[3] Tables 2.1, 2.2
9.In support of this contention, the applicant relied upon a report prepared by Mr Kuschel, dated 22 June 2018 (the Kuschel Report). The Kuschel Report comprises a witness statement (dated 7 February 2019) and three separate acoustic assessments reports dated 22 June 2018, 23 November 2018 and 9 January 2019, and includes copy of a sound recording summary (logger report) for the period of June 2018.
10.The Kuschel Report ultimately concludes, in part, that noise within the applicant’s property, during the measured periods, was consistently around 73-73dB, and that the “constant source” was “music from Hopscotch Bar”.[4] This was the only expert evidence before the Tribunal.
[4] Witness statement by Mr Timothy Kuschel, at paragraph 23
11.A significant issue at the hearing was what reliance, if any, the Tribunal should place on the Kuschel Report.
12.In cross examination the respondent’s counsel put to Mr Kuschel that he had become an advocate for the applicant and had not met his obligations under the Tribunal’s Expert Witness Code of Conduct (Code of Conduct). Mr Kuschel denied this contention and confirmed that he completed his reports objectively and had not been asked by a representative of the applicant to make a specific finding or measurement. Mr Kuschel impressed me as an honest witness and I accept his evidence in this regard.
13.The respondent’s counsel also raised concerns about the failure of Mr Kuschel to read and acknowledge the Code of Conduct prior to undertaking his assessments. He did subsequently acknowledge the Code of Conduct in his witness statement. The tribunal will usually give greater weight to an expert report where the expert has read and complied with the Code of Conduct prior to preparing a report. However, the tribunal is not bound by the rules of evidence.[5] The tribunal is intended to be informal and efficient, and requiring a party to obtain new reports, or a witness to complete further reports in order to comply with the Code of Conduct is not an effective or efficient approach to the administration of justice by a tribunal. I am, in any case, satisfied that the Kuschel Report, read in its entirety, complies with the Code of Conduct in substance.
[5] ACT Civil and Administrative Tribunal Act 2008 s 8
14.There was some issue about the possible alternative sources of the nuisance noise. Mr Kuschel confirmed that where he had personally observed the source of noise on the applicant’s premises, he recorded this within his assessment report. However, he acknowledged there were periods of time when he did not observe this noise. The logger reports appear to show that there are times where the noise exceeds the SNL even when Hopscotch is not open. This is not surprising. Many transitory noises, from garbage collection vehicles to a rowdy passing crowd, may cause an elevation in noise levels.
15.Still, on balance, I am satisfied the acoustic assessment of Mr Kuschel as an accurate measurements of the noise recorded on the applicant’s premises at the stated times. The reports confirm that the noise on the applicant’s property is regularly in excess of 75dB, and sometimes much louder, including occasionally in excess of 35dB above the SNL. Some of that noise, although not necessarily all of it, is amplified music from Hopscotch.
16.The applicant also relied upon a number of EPA documents concerning an EPA warning notice, EPA infringement notice and a filed Risk Assessment Management Plan (RAMP). The applicant submitted that these documents confirm that the respondent is required by law to operate its business within the SNL and had represented same under the RAMP. Ms Parkinson’s evidence in response, was that the respondent proposed to challenge the EPA notices and was denied its “day in Court.” No officer from the EPA was called to give evidence. I give little weight to these documents, and I do not think the advance the applicant’s case to any great degree anyway.
17.There was minimal evidence, direct or otherwise, as to the impact of the noise on the applicant’s business, or indeed on the applicant’s enjoyment of the land. The applicant filed no witness statements from any director, employee or customer of Tipsy Bull.
The respondent’s evidence
18.The respondent’s defence of the nuisance claim rested on two grounds:
(a)First, the Tribunal does not have jurisdiction to hear the application; and
(b)Secondly, that the applicant has in any case failed to establish the necessary elements of the tort of nuisance.
19.The jurisdictional ground arises from observations by his Honour, Mossop J, in Campbell v Blackshaw [2018] ACTSC 39 (primary Campbell decision) and the Full Court on appeal in Campbell v Blackshaw [2019] ACTCA 1 (appeal Campbell decision). I have considered this further below.
20.The second ground rests on the contention that:
(a)First, there is no evidence of substantial noise interference; and
(b)Secondly, there is no basis for concluding that the noise interference is unreasonable.
21.As noted above, the respondent sought to impugn the validity of the Kuschel Report as evidence of interference, but not did submit any expert evidence in response.
22.The respondent filed a number of witness statements from employees of the respondent. The statements made a number of allegations about the actions of persons associated with the applicant company. These statements were ultimately not relied upon.
23.The only witness who was called to give evidence for the respondent was Ms Parkinson. Her evidence was of small assistance to the Tribunal, as she appears to have attended Hopscotch irregularly and did not personally monitor noise levels. While her evidence does establish that Hopscotch has taken some steps to address noise concerns, she was not able to give probative evidence as to the effectiveness of those measures.
24.The respondents also relied upon a statement from Ms Chen, the owner of a neighbouring business that is also located on the block. Ms Chen clearly considered the presence of Hopscotch to be of benefit to her own business, because it draws patrons. She attested that: “My business and customers are not affected or disrupted by noise from Hopscotch or any of my other two neighbours”.[6] Ms Chen was not available for cross examination. I accept her evidence as far as it goes, but it does not go very far toward addressing the real issue, which is the level of nuisance to the applicant caused by noise contamination.
Consideration: the elements of nuisance
[6] Exhibit R5 Statutory declaration of Ms Jing Jing Chen
25.A private nuisance arises where there is a substantial and unreasonable interference with the private right to the use and enjoyment of land.[7] The determination of such actions require a balancing, on one hand, of the rights of one owner or occupier to do as they like with their land, against the right of another not to have their enjoyment of their land interfered with.[8]
[7] Grand Central Car Park Pty Ltd v Tivoli Freeholder [1969] VR 62
[8] Robson v Leischke [2008] NSWLEC 152 at [49]
26.The elements of the cause of action are well established, and I do not understand them to seriously be in dispute as they relate to this case:
(a)The applicant must have standing to bring the action;
(b)That there is a substantial interference in the applicant’s enjoyment of their land; and
(c)That the interference was unreasonable.
27.There was some disagreement between the parties as to who bore the onus in relation to each element. The applicant contended that if the applicant establishes a substantial interference, the onus of proof shifts to the respondent to establish that the interference was reasonable. The applicant cited no authority for this proposition and the Tribunal could find none in any authorities. I am satisfied that, as the party bringing the civil proceeding, the onus lies with the applicant to prove each element of its case, including that the interference was unreasonable.
Standing to bring an action
28.There does not appear to be any serious question that the applicant has legal authority to bring the cause of action, although I acknowledge there may be some complication to the right caused by the fact the parties are both sub-leases of the same block. For reasons that will become apparent, I do not need to decide this issue.
Substantial interference in land
29.There are two types of nuisance cases – those where the nuisance causes physical damage, and those where the nuisance otherwise interferes with the use or enjoyment of property right.[9] Where there is evidence of material damage, this may itself be considered evidence of a nuisance.[10] However, where the interference is less tangible, as in this case, direct evidence of interference of some kind is required.
[9] Laws of Australia [33.7.160]
[10] For example, Directors of St Helen’s Smelting Co v Tipping (1865) 11 HLC 642; 11 ER 1483 Lord Westbury LC at 650-651 cited in The Laws of Australia [33.7.160]
30.Having considered the Kuschel Report, I am satisfied that noise levels from the respondent’s business breach the SNLs from time to time. The difficulty I have however, is that in order to establish this cause of action, there must actually be evidence of a nuisance – that is, evidence of the effect of the complained about conduct on the applicant that is important.[11] The applicant did not put before the Tribunal any primary evidence as to how this breach actually interferes with its enjoyment of the land.
[11] Ammon v Colonial Leisure Group Pty Ltd [2018] WASC 280, 78; citing Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79
31.The best direct evidence I could find of interference in the evidence before me was an observation by Mr Kuschel in his report that on one occasion, when undertaking his investigation, he “[n]oted staff have difficulties talking to patrons – using gestures and hand signals”.[12] If correct, this is evidence of interference with the enjoyment of land, but only on one occasion, and without any context as to the effect this situation has on the business.
[12] Acoustic assessment by Mr Tim Kuschel, dated 22 June 2018 at page 5
32.It would appear from the applicant’s submissions[13] that the Tribunal is being asked to infer that, because the noise levels are so high, this must of itself constitute a substantial interference with the applicant’s enjoyment of its land. There is no reasonable basis upon which the Tribunal can or should do this.
[13] Particularly paragraph 15(c)(ii)
33.Statutory noise levels may be considered a guide as to what the community, through the legislature, considers to be a reasonable noise level. Where those noise levels are exceeded, any nuisance may be more likely to be substantial, and perhaps also more likely to be unreasonable. However, absent anything more, a mere allegation that an SNL has been breached is a regulatory matter that is best dealt with by regulatory authorities. This tribunal’s role in a civil dispute is to resolve disputes between individuals, not to simply enforce the law.
34.I have no doubt that this position will be frustrating to the applicant. It may appear overly legalistic approach or even disingenuous. Accordingly, I have considered whether I can simply take “judicial knowledge” of the fact that loud noise, and particularly loud, amplified music, can have a detrimental impact on those exposed to it. Perhaps, as a matter of common sense, I could do this, and I find that the noise from Hopscotch is a self-evident interference in the applicant’s business. However, the consequences of doing this become apparent when we turn to the next question, that of whether the interference (assuming there is an interference) is unreasonable.
35.It is well established that locality is taken into account when determining whether an interference is unreasonable.[14] Consequently, even if I were satisfied that loud, amplified noise must inherently be a substantial interference, I would need to consider whether that interference is unreasonable in the circumstances. The circumstances include that both parties’ businesses are both located on an active entertainment strip in Braddon, where some noise, and perhaps even some noise above the statutory noise levels, is likely inevitable. I must consider that the respondent’s business was established first, and that other businesses, such as Ms Chen’s, apparently rely upon it to bring in customers. The question is one of balance and reasonableness, and such an assessment cannot be made unless I understand what the effect of the noise is actually having on the applicant’s business.
[14] For example, Dunstan v King [1948] VLR 269, 269; Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482
36.Evidence of noise interference could have been given by a director of the applicant company, by employees who have to work in it, or by customers who were deterred by it. Such evidence was not put before the Tribunal.
37.In the circumstances, therefore, I am simply not satisfied that the elements of private nuisance are made out in this case. The application must be dismissed.
The jurisdiction question
38.A preliminary issue in this case was whether the tribunal has jurisdiction to make orders restraining nuisance, whether generally, or in the absence of an associated claim for compensatory damages.
39.The question of jurisdiction arises because of arguments made before the Supreme Court in the primary Campbell decision and, the Court of Appeal in the appeal Campbell decision. Effectively, the question is whether section 18 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) operates in such a way as to prohibit the tribunal from hearing or determining claims for relief from nuisance where the remedy sought is injunctive, rather than damages.
40.The primary judge explained his reasoning on this issue at [20]-[30] of the primary Campbell decision as follows:
20. The applicant submitted that there is no power to grant an injunction because the jurisdiction of the ACAT is limited to claims for damages where the amount claimed does not exceed $25,000. The applicant submitted that s 18 of the ACAT Act limited the jurisdiction to “civil dispute applications claiming amounts of not more than $25,000.”
21. The applicant also submitted that if an injunction was to be granted this would “require proper consideration of the maxims of equity”.
22. The respondent submitted that this matter was not raised before the Appeal Tribunal and that the applicant should not be allowed to raise it now.
23. Section 15 of the ACAT Act includes the definitions of the various types of application that may be made to the ACAT. The definitions of these applications are quite precise. For example, while the wording of the definitions of “contract application” and “damages application” make specific reference to recovery of damages, the definition of “nuisance application” refers to “an application for relief for nuisance”.
24. Section 18 of the ACAT Act limits the ACAT’s jurisdiction on civil dispute applications to “applications claiming amounts of not more than $25,000”. Common boundaries determinations are excluded from this limitation: s 18(3)(a).
25. Section 22 of the ACAT Act provides that the ACAT has the same jurisdiction and powers in relation to civil dispute applications as the ACT Magistrates Court has under the Magistrates Court Act 1930 (ACT). Section 260 of the Magistrates Court Act provides:
260 Nuisance
(1)The Magistrates Court has the same jurisdiction as the Supreme Court to hear and decide a civil action for nuisance.
(2)In a civil action for nuisance, the Magistrates Court may grant the same relief as the Supreme Court may grant in a similar action in that court.
26. As injunctions are the principal form of relief granted in actions for nuisance, this provision would permit the Magistrates Court to grant injunctions in an action for nuisance.
27. There is an arguable case that the terms of s 18 are such that, in the absence of regulations expressly removing the limitation upon the jurisdiction, the jurisdiction of the ACAT does not extend to the granting of injunctive relief. There are, however, arguments to the contrary arising from the terms of the definition of “nuisance application” and the relationship between ss 18 and 22. Depending upon the interpretation of s 22 adopted it may be that:
(a)the ACAT had no power to make any order other than a monetary one;
(b)the ACAT could make ancillary orders so long as the initial application claimed damages of less than $25,000; or
(c)the limitation did not apply when non-monetary relief was sought in an application for relief from nuisance.
28. The issue is similar to that in Abbey v Mack [2010] ACTSC 140; 244 FLR 324, but that case is not determinative of the current issue.
29. I accept that the applicant’s contention is arguable. It is not a matter which was raised at either level below. Although it would be fatal to the proceedings if the first interpretation above was adopted, if the second interpretation above was adopted and the matter had been raised, it would have been open to the respondents to amend their application so as to make a formal claim for damages in an amount of less than $25,000 in order to enliven the jurisdiction of the ACAT. If that was the case, then that fact would tell against a grant of leave to appeal. It is not a case like Abbey v Mack where it was uncontroversial that the monetary limit, if it applied, was clearly exceeded: see Abbey v Mack at [2].
30. So far as the applicant’s alternative argument was concerned, the submissions of the applicant gave no indication of what “maxims of equity” might be applicable or the respect in which the application of such maxims might have altered the outcome of the case. I therefore do not consider that this alternative ground provides a basis for a grant of leave to appeal.
41.Ultimately, the primary judge accepted that the appellant’s contentions were arguable, but determined that, as they had not been raised at first instance or on appeal in the Tribunal, the issue should not be decided in the Supreme Court on appeal. The Appeal Court expressed similar views [at 30]. The matter remains undecided.
42.The respondent now relies upon these decisions to argue that the tribunal does not have jurisdiction in this case at all. The respondent also referred the Tribunal to the case of Abbey v Mack [2010] ACTSC 140 (Abbey) in support of this argument.
43.Abbey involved a referral of a question of the law to the Supreme Court pursuant to section 84 of the ACAT Act. The application involved a claim for the return of a broodmare worth about $80,000. The question was whether the ACAT had jurisdiction to hear an application for the return of goods where the goods concerned exceeded the jurisdiction of the tribunal. In that case, Cowdroy J observed that (noting that this matter was decided before the ACAT’s jurisdiction was extended to $25,000):[15]
24. Legislation is required to be interpreted in such a manner as to give effect to the intention of Parliament and to ‘harmonious goals’: see Project Blue Sky Inc and Others v Australian Broadcasting Authority [1998] HCA 28;(1998) 194 CLR 355 at [70]. The Court is required to attempt to give meaning and effect to the words used in the statute: see Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569 at 574; Leon Fink Holdings Proprietary Limited v Australian Film Commission (1979) 141 CLR 672 at 679.
25. In Ross v The Queen [1979] HCA 29; (1979) 141 CLR 432 Gibbs J (as he then was) at 440 referred to the need to interpret statutes with a construction which will be ‘harmonious’. Further, s 140 of the Legislation Act 2001 (ACT) (‘the Legislation Act’) requires that ‘in working out the meaning of an Act, the provisions of the Act must be read in the context of the Act as a whole’.
26. Taking into account the provisions of ss 18 and 19 and having regard to the object of the ACAT Act, the Court finds that it would be inconsistent with the scheme of the legislation if ACAT, instead of ordering return of the goods, had jurisdiction to award an amount to be paid in excess of the monetary limit imposed by s 18 of the ACAT Act in lieu of a return of the goods. The same finding applies where the goods were destroyed or were otherwise unavailable as envisaged by Direction 84(4).
27. The jurisdictional limit determined by s 18 of the ACAT Act applies to civil dispute applications, which by definition includes goods applications. Accordingly, if a claim for detention of the goods is made and the goods claimed are assessed by ACAT to have a value exceeding $10,000, ACAT has no jurisdiction to deal with such claim.
[15] Abbey v Mack [2010] ACTSC 140, [24]
44.The second question in Abbey was the tribunal’s power to grant injunctions, particularly under section 53 of the ACAT Act. The Supreme Court said:
41. There is no suggestion that the jurisdictional limit prescribed by s 18 of the ACAT Act is affected by any order made under s 53. Accordingly, the orders made under s 53 must be made subject to the overriding limit of ACAT’s jurisdiction. Since the value of the broodmare exceeds that limit it follows that the interim orders were made without jurisdiction. In consequence they are invalid.
45.This reasoning would appear to suggest that, while the tribunal has the power to grant injunctions, that power is constrained by the monetary limits of the tribunal’s jurisdiction.
46.The monetary limitation on the tribunal’s jurisdiction appears obvious and makes policy sense – the tribunal is a no costs forum intended to resolve lower value disputes in a cost effective manner. However, imposing a monetary limit on the tribunal’s injunctive power creates practical problems. How does one calculate the “value” of an injunctive order of the kind sought in this case? An order that the respondent comply with the SNLs would not amount to any direct payment of damages or compensation to the applicant by the respondent, but may indirectly benefit his business in the long term to a value well in excess of $25,000. Similarly, while such an order may not result in any immediate monetary imposition on the applicant (noting that the applicant does not concede that it is operating outside the SNLs at all), it may have a detrimental effect on its business that, again, exceeds the tribunal’s jurisdiction. The answers to these questions are beyond the scope of this decision, but may need to be considered should section 18 of the ACAT Act be amended.
47.The applicant says that the Tribunal has previously established jurisdiction to grant injunctive relief in Young v Hammond [2012] ACAT 30 (Young v Hammond), and this Tribunal must follow that precedent. This submission is not entirely correct. While, in the interests of the comity, this Tribunal will usually follow its own decisions – particularly where the decision is one of a presidential member – the tribunal is not bound by the doctrine of precedent. This is particularly the case in relation to questions of jurisdiction, and where there is conflicting guidance from a superior court.
48.Nonetheless, while the tribunal is not bound by Young v Hammond, it may take into account that the current practice of the tribunal is to hear claims in nuisance, and grant injunctive relief where appropriate, and where within the other jurisdictional limitations of the tribunal. I acknowledge the concerns about the tribunal’s jurisdiction evidenced in Campbell v Blackshaw, but the issue was ultimately not resolved. It will need to be considered at another time, or, preferably, resolved by legislative amendment in the meantime.
49.Ultimately, I am satisfied that the tribunal has jurisdiction to at least hear the application, even if one of the remedies sought may have been beyond the scope of the tribunal’s jurisdiction. As I am in any case dismissing the application, I do not need to consider this issue further.
50.Orders:
(a)The application is dismissed.
………………………………..
Senior Member H Robinson
HEARING DETAILS
FILE NUMBER:
XD 1488/2018
PARTIES, APPLICANT:
Tipsy Bull Pty Ltd
PARTIES, RESPONDENT:
Foundary Enterprises Pty Ltd Trading as Hopscotch Bar
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
Mr Ronald
SOLICITORS FOR APPLICANT
Adero Law
SOLICITORS FOR RESPONDENT
N/A
TRIBUNAL MEMBERS:
Senior Member H Robinson
DATES OF HEARING:
25 March 2019
4
12
0