MARTIN LEWIS SHIPWRIGHTS PTY LTD v HUTTON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HOPE (2), PRIESTLEY (3) AND CLARKE (1) JJA 16 March 1988 [1988] NSWCA 92 Nuisance — Injunctions — Orders made not sought in summons or at the hearing — error of law — provision in summons seeking "such further or other order as the court thinks fit" does not justify making substantive order without notice to the party against whom it is made. ORDERS The appeal is upheld. Orders 1 and 2 of 19 May 1987 are set aside. Order 4 is varied to exclude reference to orders | and 2. Otherwise the orders made by Bryson J on 19 May 1987 confirmed. The respondent should pay the appellant's costs of the appeal and have a certificate under the Suitors' Fund Act. Clarke JA The appellant has, for many years, conducted a shipwrights business in the grounds of the Royal Motor Yacht Club of New South Wales, Broken Bay Branch, at 46 Prince Alfred Parade, Newport. Immediately to the east of these premises is a private residence in which the respondents have lived since 1982. Their house is set in a pleasant residential area of high amenity enhanced by the proximity of Pittwater, ready access to facilities for boating and convenient access to other amenities. However, during their residence they have found that waste materials from the appellant's sanding, grinding and spray painting operations, which are carried out in the normal course of a shipwright's business, was regularly deposited on their land in such a manner as to cause them considerable distress. Accordingly, on 23 January 1986 they filed a summons returnable before the Equity Division of the court in which they sought the following orders: "1. An order that Martin Lewis Shipwrights Pty Ltd by itself, its servants and agents be restrained from carrying on sanding operations on boats and spray painting in such a manner as to escape onto the Plaintiff's property so as to constitute a nuisance to the Plaintiffs. 2. An order that the Defendant pay damages to the Plaintiffs in respect of damage suffered to the Plaintiff's property. 3. Costs. - 4. Such further or other order as the court thinks fit." The appellant resisted the making of the orders and the trial of the issue posed by the application for an order in the form appearing in para | of the Summons commenced on 2 October 1986. The hearing proceeded over a number of days in broken periods and concluded on 12 December 1986. On 19 May 1987 Bryson J, the trial judge, published his reasons for judgment upholding the respondent's claim for relief. However, the orders actually made by his Honour went beyond the relief which had been sought by the respondents The orders which he made, omitting ancillary orders were as follows: 1. Order that with the exception stated in Order (2) the defendant itself its servants and agents is restrained perpetually from carrying on all and any operations in the open air on the premises of the Royal Motor Yacht Club of New South Wales Broken Bay Branch, at 46 Prince Alfred Parade Newport New South Wales, foreshores jetties pontoons vessels and waters adjacent thereto being operations of spray-painting; and also operations of 2 UNREPORTED JUDGMENTS sanding; and also operations of grinding. 2. Order 1 is subject to the following exception: if the defendant carries on operations in such a manner that no paint spray, no dust and no other waste products of the operations is discharged into the air the defendant is excepted from the restraint in Order 1. 3. The defendant itself its servants and agents is restrained perpetually from discharging from the premises of the Royal Motor Yacht Club of New South Wales, Broken Bay Branch at 46 Prince Alfred Parade Newport New South Wales, foreshores jetties pontoons vessels and waters adjacent thereto any dust and also any paint spray in such manner as to cause nuisance to the plaintiffs in their occupation of their house property and land at 44 Prince Alfred Parade Newport New South Wales. 4. Orders 1, 2 and 3 have effect on and after 16 June, 1987." The appellant has accepted that his Honour was entitled to make an order in the form of his order number 3 and does not seek to challenge that order in this appeal. The sole ground of the appeal is that orders 1 and 2 were never sought by the respondents in their summons, were not sought by them during the hearing, were never the subject of discussion, either during evidence or the addresses, and consequently that his Honour was in error in making them. The appellants also submitted that insofar as the respondent, sought, and were entitled to, only relief from the nuisance upon which their claim is based, his Honour erred in granting injunctions which went far beyond the mere relief of a nuisance and had the practical effect of preventing it carrying out a substantial portion of its shipwright operations. $P The reasoning which supports the making of orders 1 and 2 appears in the last paragraph of his Honour's reasons which read: "Spray painting, sanding and grinding in the open air, in the techniques which the defendant has used, are nuisances per se and as the defendant has no proposals which would prevent the emission of waste products the injunction will be absolute in its application to them. In its application to the defendant's activities generally, the injunction will be qualified and will allow activities which do not create nuisances to the plaintiffs. As it is possible that the defendant may adopt some effected measures of control I will include an exception by which the defendant can escape the absolute operation of the injunction against operations in the open air if it can prevent all emission of waste products." It would appear, therefore, that his Honour had in mind that the absence of any practicable means of abating the nuisance necessitated the grant of an injunction absolute in its terms, subject only to an exception which could be availed of if effective measures of control could be developed. There are a number of difficulties with this reasoning and in particular in making order (1) which is not limited to the prevention of the causing of a nuisance to the respondent's premises and in formulating an exception which read literally appears incapable of application. However, it is not necessary to resolve these difficulties to dispose of the present appeal. The appellant claims that it was never given notice that an order in such wide terms might be made and that insofar as it was given no opportunity to present either evidence or submissions in answer to an application for such an order his Honour was in error in proceeding to make it. The respondent's counsel, who appeared at the trial, accepts that the respondents did not seek, either in the summons, or orally during the hearing, orders in the terms of the first order or the exception in order 2 both of which were ultimately made. He also accepts that the appellant was given no specific notice that such orders might be made and that the evidence and the submissions URJ MARTIN LEWIS SHIPWRIGHTS PTY LTD v HUTTON (Priestley JA) 3 were directed, at least primarily, to the issue whether the respondents were entitled to the relief which they sought in para 1 of the summons. However, he sought to support the making of order | on two bases. Firstly, he said, that the respondents had included in their summons provisions for "such further order or other order as the court thinks fit". This is a prayer for relief commonly sought in summons and is designed to cover the making of ancillary type orders. It does not, however, provide any justification for making a substantive order against a party who has never been put on notice that there is a possibility that that order will be made and when the issue whether or not it should be made has never been litigated. The second basis on which he seeks to support the order is that there was evidence on which his Honour could justifiably have proceeded to make the order which he did. This maybe so, although I find it difficult to see how an order could be made in terms going beyond the enjoining of the appellant's activities so as to constitute a nuisance to the respondents. After all order 1 effected a perpetual restraint subject to the exception, which, on its terms, operated whether or not a nuisance was created by those activities to the respondents. But the question is not whether there was evidence which might conceivably have supported the order made. The sole issue is whether his Honour erred in making a substantive order which had never been sought, had not been the subject of evidence or argument in the proceedings and on the terms of which the appellants had never been given an opportunity to make submissions. It seems to me that those considerations, all of which counsel for the respondents accepts, leads to an inevitable Conclusion that his Honour erred in making orders | and 2. It is possible that his Honour regarded these orders as some type of an amelioration of order 3, but in my opinion they go so far beyond the relief sought and have such a potentially drastic effect upon the appellant as to have required that the appellant be apprised of the precise matter which it had to meet and given every opportunity to answer that case. It is clear that that did not occur on this particular occasion and that his Honour erred in making orders | and 2. In my opinion the following orders should be made: The appeal should be upheld. Orders 1 and 2 of 19 May 1987 set aside. Order 4 varied to exclude reference to orders 1 and 2. Otherwise the orders made by Bryson J on 19 May 1987 confirmed. The respondent should pay the appellant's costs of the appeal and to have a certificate under the Suitors Fund Act. Hope JA I agree. Priestley JA I agree The appeal is upheld. Orders | and 2 of 19 May 1987 are set aside. Order 4 is varied to exclude reference to orders 1 and 2. Otherwise the orders made by Bryson J on 19 May 1987 are confirmed. The respondent is to pay the appellant's costs of the appeal and to have a certificate under the Suitors Fund Act.