Woolnough v Isaac Regional Council - [2017] QCA 219

SUPREME COURT OF QUEENSLAND

CITATION:

Woolnough & Anor v Isaac Regional Council [2017] QCA 219

PARTIES:

TIMOTHY EARL WOOLNOUGH
(first appellant)
CHRISTEEN WOOLNOUGH
(second appellant)
v
ISAAC REGIONAL COUNCIL
(respondent)

FILE NO/S:

Appeal No 13425 of 2016
SC No 12 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Mackay – Unreported, 25 November 2016 (North J)

DELIVERED ON:

29 September 2017

DELIVERED AT:

Brisbane

HEARING DATE:

30 May 2017

JUDGES:

Morrison and McMurdo JJA and Boddice J

ORDERS:

1.   The appeal is dismissed.

2.   Set aside Orders No. 2 and No. 8 made on 25 November 2016.

3.   The costs of the application for summary judgment heard on 25 November 2016 be reserved to the judge hearing the trial in the proceedings.

4.   There be no order as to the costs of the appeal.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – EVIDENCE IN SUPPORT OF APPLICATION – where the appellants seek damages and restitution of land from the respondents in a current Supreme Court claim in which they allege trespass, negligence and nuisance – where the appellants’ applications for summary judgment and default judgment were refused and the appellants appeal against those orders – where the appellants’ submissions surround claims that they were not heard by the primary judge and the respondent was yet to produce evidence to support their defence – where the respondent submitted that the volume of evidence supporting and defending the claim is such that summary or default judgment would be inappropriate – whether the learned primary judge erred in refusing the applications for summary and default judgment

Uniform Civil Procedure Rules 1999 (Qld), r 288, r 292

Woolnough & Anor v Isaac Regional Council [2016] QSC 172, related

COUNSEL:

The appellants appeared on their own behalf
P D Lane for the respondent

SOLICITORS:

The appellants appeared on their own behalf
Barry Nilsson Lawyers for the respondent

MORRISON JA: Mr and Mrs Woolnough[1] have been engaged in litigation against the Isaac Regional Council (the Council) since December 2015. They claim that over 10 years ago the Council installed a sewer main on their property without permission or authority to do so. They contend that the result is that subsidence has occurred, and raw sewage rises to the surface and escapes onto their land. They seek damages and restitution of the land.
[1]For convenience only, and without intending any disrespect, I will refer to them as “the Woolnoughs”, unless it is necessary to distinguish between them.
On 25 November 2016, they applied for summary judgment and for default judgment against the Council. Both applications were dismissed. They appeal against those orders.
The grounds of the appeal were set out in a discursive way in various documents used by the Woolnoughs on the appeal, but can be synthesised as follows:
(a)the Council’s legal representatives were acting on instructions from a third…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] QCA 219
Decision Date: 29 September 2017

CaseChat Overview and Summary

In Woolnough v Isaac Regional Council, the Supreme Court of Queensland was presented with an appeal from the appellants, Woolnough, who were seeking damages and restitution of land from the respondents, Isaac Regional Council. The appellants alleged trespass, negligence, and nuisance against the respondents. The primary judge had previously dismissed the appellants’ applications for summary judgment and default judgment, leading to this appeal. The appellants argued that they were not heard by the primary judge and that the respondents had not produced evidence to support their defence. The respondents countered that the volume of evidence was such that summary or default judgment would be inappropriate.

The court considered whether the primary judge had erred in refusing the applications for summary and default judgment. It was established that there was no reasonable prospect of summary judgment on the claims in nuisance or negligence due to the conflict in evidence. However, the court found that the defence to the trespass claim had not been established as the Council provided no evidence of the licence they claimed to have to enter the appellants' land. Since the onus was on the Council to establish that licence, they had not demonstrated a viable defence to the trespass claim. The court found it to be an error to dismiss the application for summary judgment concerning the trespass claim. Nonetheless, the court noted that judgment against the Council would only result in damages to be assessed, which could not be resolved summarily.

The court also considered the Council's application to withdraw an admission and amend the defence to state that the work was done in 2005, rather than 2007 as previously admitted. The court found that the application was likely to succeed, as it was significant to the Council's defence and there was no prejudice to the appellants. The court concluded that if the Council were permitted to amend the defence, the case would be substantially re-pleaded, introducing a new dimension in terms of proof of the Council's authority to conduct the works on the land. The court believed that the re-pleading of the case would compel it to refuse to allow the appeal, even though an error had been demonstrated.

ORDERS:
1. The appeal is dismissed.
2. Set aside Orders No. 2 and No. 8 made on 25 November 2016.
3. The costs of the application for summary judgment heard on 25 November 2016 be reserved to the judge hearing the trial in the proceedings.
4. There be no order as to the costs of the appeal.

Orders

Orders of the court

1. The appeal is dismissed.

2. Set aside Orders No. 2 and No. 8 made on 25 November 2016.

3. The costs of the application for summary judgment heard on 25 November 2016 be reserved to the judge hearing the trial in the proceedings.

4. There be no order as to the costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Given that state of conflict, there was no reasonable prospect of summary judgment being given on the claims in nuisance or negligence.Judgment on the claim in trespass? Whatever may be said about the difficulty of resolving, on a summary basis, the pleaded causes of action in nuisance and negligence, on the face of it there was reason to conclude that the defence to the trespass claim had not been established because the Council adduced no evidence of the licence it contended it had to enter the land. Since the onus was on the Council to establish that licence, it had not demonstrated a viable defence to the trespass claim. On that basis it was an error to dismiss the application for summary judgment in so far as the trespass claim is concerned. It must be noted, however, that judgment against the Council would have been merely for damages to be assessed. On no basis could it be suggested that the question of damages could be resolved summarily. Had this been the only basis for considering the judgment below the Woolnoughs would have been entitled to succeed on the appeal, at least on a limited basis. However, the fact that the Council were to seek to withdraw the admission that the work was done in 2007, and advance a positive case that it was done in 2005, as referred to in paragraph [23] above, alters the way in which this Court should treat the appeal. At the hearing before this Court the Council relied on an affidavit by its solicitor, setting out the basis for the application to withdraw the admission and the proposed amended defence.[52] Part of the material included in the affidavit consisted of information and contemporaneous documents from Council employees and engineers who were involved in the sewer project at the time, showing that the work was done on mid-2005.[53] That affidavit was evidently the basis for the application to amend the defence. Given the lack of prejudice to the Woolnoughs, and the importance of the point to the Council’s defence of the claims, it was, in my view, likely that the application to amend would succeed.[52]Affidavit of Mr Sharman, sworn 18 May 2017.[53]Paragraphs 21-23 and Exhibits B-Ito the affidavit of Mr Sharman. If the Council were given leave to amend to plead that the work was done in 2005, prior to the Woolnoughs becoming the owners of the land, there would be an inevitable re-pleading of the case, including the reply to such an allegation. And it would introduce a new dimension in terms of proof of the authority which the Council had, or lacked, to go on the land and conduct the works. The fact that the Woolnoughs gave no consent would become only part of the factual matrix surrounding that issue. In my view, the circumstance that the case was likely to be substantially re-pleaded in such an important way would compel this Court to refuse to allow the appeal, even though error has been demonstrated. After the hearing of the appeal the Court requested the parties to say if they agreed that it could be informed of the outcome of the Council’s application and the form of the Further Amended Defence. The Council agreed but the Woolnoughs did not. Notwithstanding the Woolnoughs’ response it is appropriate that the Court know the outcome of the application, given its significance as described above.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Woolnough & Anor v Isaac Regional Council [2017] QCA 219
PARTIES:	TIMOTHY EARL WOOLNOUGH (first appellant) CHRISTEEN WOOLNOUGH (second appellant) v ISAAC REGIONAL COUNCIL (respondent)
FILE NO/S:	Appeal No 13425 of 2016 SC No 12 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Mackay – Unreported, 25 November 2016 (North J)
DELIVERED ON:	29 September 2017
DELIVERED AT:	Brisbane
HEARING DATE:	30 May 2017
JUDGES:	Morrison and McMurdo JJA and Boddice J
ORDERS:	1. The appeal is dismissed. 2. Set aside Orders No. 2 and No. 8 made on 25 November 2016. 3. The costs of the application for summary judgment heard on 25 November 2016 be reserved to the judge hearing the trial in the proceedings. 4. There be no order as to the costs of the appeal.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – EVIDENCE IN SUPPORT OF APPLICATION – where the appellants seek damages and restitution of land from the respondents in a current Supreme Court claim in which they allege trespass, negligence and nuisance – where the appellants’ applications for summary judgment and default judgment were refused and the appellants appeal against those orders – where the appellants’ submissions surround claims that they were not heard by the primary judge and the respondent was yet to produce evidence to support their defence – where the respondent submitted that the volume of evidence supporting and defending the claim is such that summary or default judgment would be inappropriate – whether the learned primary judge erred in refusing the applications for summary and default judgment Uniform Civil Procedure Rules 1999 (Qld), r 288, r 292 Woolnough & Anor v Isaac Regional Council [2016] QSC 172, related
COUNSEL:	The appellants appeared on their own behalf P D Lane for the respondent
SOLICITORS:	The appellants appeared on their own behalf Barry Nilsson Lawyers for the respondent