ACT CIVIL & ADMINISTRATIVE TRIBUNAL
VORKAPIC v PLUNKETT (Civil Dispute) [2022] ACAT 74
XD 1151/2021
Catchwords: CIVIL DISPUTE – nuisance – determination of whether there is a substantial interference – determination of whether the interference was unreasonable – remedies – whether ACAT has power to grant injunctive relief – terms of prohibitive injunction
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 18, 22, 74
Cases cited:Blackshaw & Evans v Campbell (No.2) [2016] ACAT 108
Campbell v Blackshaw [2018] ACTSC 39
Campbell v Blackshaw [2019] ACTCA 1
Gales Holdings Pty Limited v Tweed Shire Council [2011] NSWSC 1128
Robson v Leischke [2008] NSWLEC 152Tipsy Bull Pty Ltd v Foundry Enterprises Pty Ltd Trading as Hopscotch Bar [2019] ACAT 51
Tribunal:Senior Member Prof T Foley
Date of Orders: 12 September 2022
Date of Reasons for Decision: 12 September 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 1151/2021
BETWEEN:
MIRJANA VORKAPIC
Applicant
AND:
RYAN PLUNKETT
Respondent
TRIBUNAL:Senior Member Prof T Foley
DATE:12 September 2022
ORDER
The respondent is restrained from continuing to permit noise, vibration, smell and smoke emanating from [address redacted] to cause a nuisance at the applicant’s house at [address redacted] and is required to take the measures specified to abate the nuisance.
The Tribunal orders the respondent Ryan Plunkett:
(a)To refrain from setting up and using audio speakers outside his residence.
(b)To refrain from holding parties or other gatherings or playing music audible outside his residence after 11pm.
(c)To refrain from any repair, service, modification, maintenance, tuning, or testing of any motor vehicle on his premises either in driveways, garages or other sites in a manner such as generates noise, smoke or smell outside the premises.
(d)To refrain from starting any modified motor vehicle on or in the vicinity of his premises at any time, except for the purposes of loading it onto a trailer.
(e) To refrain from encouraging or allowing his friends or associates from starting or driving any motor vehicles in a manner such as generates noise, smoke or smell in the vicinity of his premises.
The Tribunal further orders the respondent to pay to the applicant the sum of $100 by way of damages and $165 in reimbursement of the ACAT filing fee, being a total of $265 by 5pm on 10 October 2022.
………………………………..
Senior Member Prof T Foley
REASONS FOR DECISION
This matter was first listed for an in person hearing on 24 June 2022. The applicant appeared on her own behalf, but the respondent did not appear. The applicant’s husband Branko Vorkapic, a witness in the matter, required the benefit of a Croatian interpreter and this was not available. The matter was adjourned for hearing on 15 July 2022 and the respondent was advised that the matter would proceed in his absence if he did not attend. The respondent was not present on that day and the matter proceeded in his absence. The Tribunal had before it the civil dispute application and witness…
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- Case
- [2022] ACAT 74
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the tribunal were whether the respondent's conduct constituted a substantial and unreasonable interference with the applicant's use and enjoyment of her property, and whether the ACAT had the power to grant injunctive relief. The tribunal considered the evidence presented by both parties, including the applicant's testimony and video evidence, to assess the nature and extent of the interference. The tribunal also evaluated whether the interference was unreasonable, taking into account the ordinary usages of the community and the need for reasonable give and take between neighbours.
In reaching its decision, the tribunal found that the respondent's activities had indeed created a substantial and unreasonable interference with the applicant's use and enjoyment of her property. The evidence demonstrated that the respondent's actions were not only frequent and prolonged but also deliberately designed to cause distress. The tribunal concluded that the respondent's conduct amounted to a nuisance under the principles established in Blackshaw and Gales Holdings Pty Limited v Tweed Shire Council. The tribunal also determined that it had the power to grant the injunctive relief sought by the applicant. As a result, the tribunal issued a prohibitive injunction against the respondent, prohibiting him from engaging in the activities that caused the nuisance and ordering him to pay damages and reimbursement of costs to the applicant.
The tribunal's final orders include a prohibition on the respondent from engaging in activities that cause noise, vibration, smell, and smoke from his property, such as setting up audio speakers, holding late-night parties, modifying motor vehicles, and encouraging others to do the same. The respondent is also required to pay the applicant $265 in damages and reimbursement of costs by a specified date. This decision underscores the importance of maintaining reasonable standards of conduct between neighbours and the role of the tribunal in addressing disputes over nuisances.
Orders
Orders of the court
The respondent is restrained from continuing to permit noise, vibration, smell and smoke emanating from [address redacted] to cause a nuisance at the applicant’s house at [address redacted] and is required to take the measures specified to abate the nuisance.
The Tribunal orders the respondent Ryan Plunkett:
(a) To refrain from setting up and using audio speakers outside his residence.
(b) To refrain from holding parties or other gatherings or playing music audible outside his residence after 11pm.
(c) To refrain from any repair, service, modification, maintenance, tuning, or testing of any motor vehicle on his premises either in driveways, garages or other sites in a manner such as generates noise, smoke or smell outside the premises.
(d) To refrain from starting any modified motor vehicle on or in the vicinity of his premises at any time, except for the purposes of loading it onto a trailer.
(e) To refrain from encouraging or allowing his friends or associates from starting or driving any motor vehicles in a manner such as generates noise, smoke or smell in the vicinity of his premises.
The Tribunal further orders the respondent to pay to the applicant the sum of $100 by way of damages and $165 in reimbursement of the ACAT filing fee, being a total of $265 by 5pm on 10 October 2022.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In Blackshaw, the tribunal summarised his Honour’s elucidation of the unreasonableness element[8] of such an interference thus as follows:Nuisances of the third kind arise where an occupier uses his or her land in a way that results in an unreasonable interference with the neighbour’s enjoyment of his or her land, having regard to the ordinary usages of humankind living in a particular society. In determining whether there has been such an unreasonable interference, a balance must be maintained between the right of the occupier to do what he or she likes with his or her own land and the right of the neighbour not to be interfered with. Nuisances of this third kind will usually arise from something emanating from the defendant’s land such as noise, vibrations, dust, sediment from soil erosion, smells or smoke.[9] [emphasis added][8] [2008] NSWLEC 152 at [84[- [86][9] [2016] ACAT 108 at [21 The tribunal in Blackshaw also cited the comments of Bergin CJ in Gales Holdings Pty Limited v Tweed Shire Council with respect to the unreasonableness element:Nuisance is the unreasonable interference with the use and enjoyment of a person’s land ... The determination of whether there has been “unreasonable interference” is by the application of an objective test - whether a person of ordinary habits and sensibilities in the plaintiff’s position and circumstance would regard the interference with the enjoyment of the land as unreasonable. It is necessary to decide whether there has been “an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions” of the community. ... These include the notion of “reasonable give and take”.[10][10] [2011] NSWSC 1128 at [295] From these summaries, the Tribunal lists three elements which need to be established by the applicant:(a)The interference to her use and enjoyment of her land by the respondent was substantial, such as to actually interfere with that enjoyment.(b)The interference to her use and enjoyment of her land by the respondent was unreasonable, the measure of reasonableness taking into account the need for give and take between neighbours.(c)The interference was repeated and ongoing. The oral and written evidence presents a picture of the applicant and her family under extreme distress as a result of the respondent’s conduct over a lengthy period. But the videos (and I accept that the 20 or so extracts viewed are only an example of many other occasions) paint a far worst picture of how overborne they are by that conduct. Their own evidence speaks of loud, lengthy parties and loud noise, smell and smoke pollution from the respondent’s constant tunning, revving and modifying of his street-rod vehicle in his driveway and garage. The video evidence shows they are regularly under a constant barrage of noise, where they, and surely the rest of the neighbours, must simply feel under assault or attack. It seems no exaggeration that it reminds the applicant and her husband of the war-torn country they left behind as refugees. It is an inescapable conclusion from some of the comments in the recordings that the conduct is deliberately designed to offend and annoy. Simply put, no one should have to put up with such a nuisance. The respondent’s friend’s comment on the afternoon of the 13 June 2021 captures it best when he shouts out over the noise and smoke, “it sounds just like Summernats!”, except of course that Summernats is a matter of days, not the months and months of auditory assault the applicant and her family has had to bear.