New South Wales Supreme Court EUI Pty Limited v Pamela Connell & ors [2005] NSWSC 1158 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 14 November 2005 JUDGMENT DATE : 15 November 2005 JUDGMENT OF : Brereton J CATCHWORDS : INJUNCTIONS – Interlocutory injunctions – reconsideration and variation – where appropriate – where fresh evidence produced which could have been obtained for previous hearing on matters which were agitated in previous hearing LEGISLATION CITED : Uniform Civil Procedure Rules r 1.11(3) Adam P Brown Male Fashions Limited v Phillip Morris Inc (1981) 148 CLR 170 at 178 Elders Rural Finance v Westpac (NSWSC, 24 May 1989, unreported) CASES CITED : EUI Pty Limited v Pamela Connell & Ors (NSWSC, 15 August, 2005, unreported) EUI Pty Limited v Pamela Connell & Ors (NSWSC, 16 August, 2005, unreported) Harrison Partners Constructions Pty Limited v Jevena Pty Limited [2005] NSWSC EUI Pty Limited (plaintiff) Pamela Connell (first defendant) Mary Jane Nieuwenhuise (second defendant) PARTIES : Michael Nieuwenhuise (third defendant) Cornell Pastyoral Coy Pty Limited (fourth defendant) FILE NUMBER(S) : SC 2306/04 J Hewitt (plaintiff) COUNSEL : A Seward (first, second, third defendants) Clinch Neville Long (plaintiff) SOLICITORS : PME Robinson & Co (first, second, third defendants) Horton Rhodes (fourth defendant) LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BRERETON J Tuesday 15 November 2005 2306/04 EUI Pty Limited v Pamela Connell & Ors JUDGMENT 1 HIS HONOUR: The plaintiff Eui Pty Limited claims to be entitled to a right of carriageway benefiting its land which may conveniently be described as former Lots 19 and 20 of the former East Glendon Estate at Glendonbrook and burdening former Lots 14 (owned by the fourth defendant Cornell Pastoral Coy Pty Limited), and Lots 15 and 16 (owned by the first defendant Pamela Connell, the second defendant Mary Jane Nieuwenhuise and the third defendant Michael Nieuwenhuise). On 16 August 2005, McDougall J, after a contested interlocutory hearing, made orders, of which paragraph 1 was an order until further order restraining the defendants from interfering with Eui's used of the claimed right of way provided that the use be during daylight hours for the purpose of transporting cattle from market to Eui's land and from that land to market; that prior written notice be given to the defendants of the proposed use, relevantly in the case of movements of cattle from Eui's property 48 hours before the proposed movement, such notice to include the number and size of trucks proposed to use the Right of Way and the approximate time of the proposed use; that the use by Eui its servants and agents is at Eui's own risk; and that Eui use its best endeavours when using the right-of-way not to damage the defendants' property including cattle. Liberty was granted to apply on one day's notice. 2 On Friday 11 November 2005 at 4.39 pm, Eui gave notice to the defendants that it proposed to use the right-of-way "for the transport cattle" by means of "4 single decker, and/or 4 truck and dog, and/or 6 tray top vehicles" between "8am and 7pm, on Tuesday the 11 day of November 2005" [sic]. This was apparently intended to be a reference to Tuesday 15 November 2005, and was so understood by the recipients. 3 On the same day at 8.09pm, the solicitors for the first, second and third defendants responded by facsimile to Eui's solicitors to the effect that in view of advice from a consultant engineer, Mr Berthon, that the right-of-way was unsafe for the proposed use, they required an undertaking the Eui would not proceed with the proposed use and that failing such undertaking, application would be made to the Court to set aside paragraph 1 of the 16 August orders. 4 At about 3.15pm yesterday, those defendants obtained leave to file in court, returnable instanter, a motion seeking an order that paragraph 1 of the 16 August Orders be set aside until further order. The plaintiff, having been notified of the application, was present and opposed the relief sought. Having read the evidence and heard submissions from both parties, while pointing out that prima facie the notice of 11 November appeared insufficient and invalid – because, having regard to Uniform Civil Procedure Rules r 1.11(3), it was not given 48 hours before the proposed movements, and it did not adequately include in a comprehensible manner the number and size of trucks proposed to use the right-of-way – I dismissed the defendants' motion with costs. 5 These are my reasons for so doing. Nothing in my decision should be regarded as suggesting that the purported notice of 11 November is sufficient compliance with the proviso to paragraph 1 of the 16 August Orders. 6 The circumstances in and basis on which interlocutory relief is granted mean that it is not to be regarded as immutable pending the final hearing, but may be reconsidered when the justice of the case so requires. To warrant reconsidering interlocutory relief will usually require that there has been some relevant change of circumstances since it was last granted or considered, which change may bear on the criteria governing the granting of interlocutory relief – typically, whether there is a seriously arguable case for final relief, and the balance of convenience. As Bryson J said in Elders Rural Finance v Westpac (NSWSC, 24 May 1989, unreported), white the nature of claims for interim injunctions means that they are usually made on a basis which admits of some debate or re-argument, repeated returns to the court for reconsideration of a claim for an interlocutory injunction could not be regarded with favour. Nonetheless, there are circumstances where reconsideration may be appropriate. Examples given (by Gibbs CJ, Murphy, Aickin, Wilson and Brennan JJ) in Adam P Brown Male Fashions Limited v Phillip Morris Inc (1981) 148 CLR 170 at 178 were where new facts came into existence or were discovered, which render the enforcement of an interim order unjust. As Bryson J observed, "Their Honours did not of course endeavour to give an exhaustive statement of when reconsideration would be appropriate and it would hardly be possible to do so. However, there ought in my view for this as for other discretionary applications to be some new matter to be raised which could represent a sound or positive ground or good reason for embarking upon reconsideration". 7 In Harrison Partners Constructions Pty Limited v Jevena Pty Limited [2005] NSWSC, while acknowledging that it was impossible to state a rule capable of universal application, I ventured to say that the general rule was that interlocutory relief was not to be reconsidered if all that was involved was a review on the same facts as prevailed when it was originally granted or declined, or on facts which ought then reasonably have been in contemplation; but if new facts have emerged which may affect the arguability of the case for final relief, or the balance of convenience, then the question of interlocutory relief may be reconsidered. 8 In his Honour's judgment given on 15 August, McDougall J found, as the defendants had conceded before his Honour, that there was a serious question to be tried as to the existence and enforceability of the right-of-way [McDougall J, 15 August 2005, [4]-[5]]. The defendants accept that nothing has changed in that respect, and that there remains a serious question to be tried. I need not revisit that issue. 9 Although critical of Eui's delay in bringing an application for interlocutory relief, his Honour ultimately decided that that delay should not be dispositive [McDougall J, 15 August 2005, [21]-[25]]. The defendants do not seek to revisit that issue, nor do I think that they could do so. 10 As to the balance of convenience, his Honour had regard to:- · The circumstance that the right-of-way was the only safe access to enable its cattle to be taken from the property to a public road and then to market, an alternative route suggested by the defendants involving a route (called the Cranky Corner Road) which was impassable at times and so steep in part as to expose animals to a risk of injury or death [McDougall J, 15 August 2005, [11]-[14]]; · The defendants' professed concern at a risk of infection or contamination of their herds [McDougall J, 15 August 2005, [15]]; · The appearance that the defendants were using denial of the right-of-way as a lever to force Eui to perform what they believed were Eui's obligations under an alleged oral agreement for sale to them of part of Eui's land [McDougall J, 15 August 2005, [16]]; · The defendants' claimed concern that the proposed user was excessive involving heavy vehicles which would likely cause substantial damage to the land over which the right-of-way passes, and in particular to a concrete ford built across a creek line which the defendants feared was not strong enough to accommodate the heavy vehicles proposed to be used. His Honour noted that this was the subject of some dispute, that Eui asserted that the right-of-way had been used by similar vehicles in the past, and that there was further dispute as to whether the axle loadings of the proposed vehicles exceed those of vehicles which had used the right-of-way in the past [McDougall J, 15 August 2005, [17]]. 11 His Honour concluded that it was not an appropriate solution to leave Eui to the uncertain benefit of access through the Cranky Corner Road, taking into account the difficulties, and the possibility of injury or death to the animals being transported; that the defendants, if they had not exaggerated, had certainly not minimised the risks to their own cattle; and that the defendants' concerns may be motivated more by ulterior motives than by genuine fears. Accordingly, the parties were directed to bring in short minutes of a regime providing Eui a reasonable opportunity of taking its animals to and from its property, perhaps on reasonable notice, which would enable the defendants to take precautions, if they desired to do so, to minimise the risk of injury or infection to their herds [McDougall J, 15 August 2005, [19]-[20]]. 12 On 16 August, his Honour gave a further judgment in respect of issues about which the parties were unable to agree upon the precise orders to be made. These included whether or not use should be limited to daylight hours, what notice should be given, whether there should be a max frequency of use, and terms of user. 13 As to frequency of use, his Honour declined to impose a maximum frequency, considering that economic reality would suggest that Eui was unlikely to run trucks up and down the right-of-way for the purpose of annoying the defendants, and that the defendants could meet any abuse of the right-of-way by exercising their liberty to apply [McDougall J, 16 August 2005, [6]]. 14 As to terms of use, his Honour agreed with the defendants' submission that it should be made clear that use of the right-of-way was at Eui's own risk, in circumstances where the defendants had fears for the ability of at least part of the right-of-way to withstand the rigours of use proposed: "Although the plaintiff disputes that … I do not see why the defendants should bear the risk of being proved correct" [McDougall J, 16 August 2005, [7]]. But, while Eui should use its best endeavours not to cause damage to the defendants' property, they should not be required to indemnify the defendants, the question of liability for damage being left to the common law [McDougall J, 16 August 2005, [8]]. 15 Thus his Honour determined:- · That there was a serious question to be tried as to existence and enforceability of the right-of-way; · That the balance of convenience favoured requiring the defendants to permit user of the right-of-way to continue, subject to certain provisos; · That Eiu's delay was not such as to disentitle it to interlocutory relief. 16 Inherent in his Honour's decision is that while the possibility of damage to the right-of-way and in particular the causeway over the creek line was raised, and the degree of risk was in dispute, any such risk was a matter for and should be born by Eui – as indeed would be the case if there were user of an undisputed right-of-way, the dominant owner being responsible for the construction and maintenance of the easement – while responsibility for any damage to the defendants' property should be left to the common law. 17 Since 16 August, the relevant developments may be summarised as follows:- · The defendants obtained a report from a consulting engineer, Mr Berthon, dated 5 September 2005, which opines that the causeway is unsafe and will fail under application of further cattle transport truck loadings, which report was served on Eui's solicitors on 7 September, with a request that Eui consent to paragraph 1 of the 16 August Orders being set aside. · Following an unsuccessful mediation on 27 September, Eui on 14 October sought access for the purpose of repairing and amending the causeway, enclosing proposed specifications for a replacement causeway. · Other than that instructions were being sought, there was no further response to that request. · On 7 November, Eui filed a motion seeking an order permitting its representatives servants and agents to enter the defendants' properties to repair and amend the causeway. · This produced a response dated 9 November, which interrogated Eui as to how additional cattle had apparently been brought onto its land without apparent user of the right-of-way, and for details of the access sought (in terms which made reasonably clear that it would be opposed), and foreshadowed an application to set aside the current orders, on the basis of Mr Berthon's report and further reports to be obtained. · On 10 November, Barrett J made directions for the filing of the defendants' foreshadowed motion and evidence by 24 November, and Eui's evidence in reply by 30 November, and stood the matter over to 1 December before the Duty Judge for hearing of both motions. · On 11 November, the Notice of Transport Cattle to Market was served. · Also on 11 November, Mr Berthon provided a further report in which he opined that cracking and damage to the causeway between 16 August and 23 September had been caused by the passage of double-decker cattle transports on 23 and 30 August, and that the passage of the vehicles referred to in the 11 November Notice would generate axle loadings that would potentially cause failure of the damaged crossing slab, which if it occurred would be sudden and without warning causing the transport vehicle to overturn into the creek with potential for significant injury to the driver and stock. 18 The basis of the defendants' application that paragraph 1 of the 16 August orders be set aside is that there is now expert evidence that the causeway is unsafe for use by vehicles of the type proposed. I accept that there is evidence to that effect, from Mr Berthon. I accept also that it can be inferred from Eui's wish to repair and amend the causeway that it apprehends that there is, at the least, reason to repair and improve the causeway. However, given the undisputed position that there is a serious question to be tried as to the existence and enforceability of the easement, and given the matters considered and addressed in the hearing before McDougall J, I do not accept that this warrants revisiting his Honour's judgment, only three months after it was delivered. 19 The main reason is that there has been no new circumstance or new fact which has emerged since McDougall J's judgment, which would warrant re-opening the question of interlocutory relief, determined as it was relatively recently, and which was not the subject of any application for leave to appeal. The safety of the user of the right-of-way was in issue before his Honour. Nothing has changed in the relevant sense since then. The availability of additional evidence of a matter which was already in issue does not amount to the emergence of a matter which was not previously known or contemplated, especially if that evidence could have been obtained previously. True there is now, and was not then, expert evidence addressed to this issue, but there is no reason why there could not have been such evidence before McDougall J. Eui's motion filed on 8 July was first returnable on 18 July, when directions were made that the defendants file and serve any affidavits on which they intend to rely on the motion for interlocutory relief by 8 August, Eui to reply by 10 August, with the motion relisted on 15 August. Further, the defendants were required, by directions made by consent on 20 May 2005, to file and serve their evidence in the substantive proceedings and in support of their cross-claim by 8 August 2005. The facts which have now emerged were reasonably foreseeable and within the contemplation of the parties and the court when the order was made. Accordingly, there is no satisfactory reason why expert evidence as to safety of user of the right-of-way should not have been available, if relevant, before McDougall J, nor why such evidence obtained after his Honour's judgment should provide a ground for re-opening issues which were addressed in it. 20 A further reason is that the new evidence does not in fact affect the balance of convenience in any significant way. His Honour resolved the safety issue not by accepting or rejecting the contentions of either party but by providing, in effect, that user was at Eui's risk. The availability of Mr Berthon's evidence does not alter this. The relevant balance is between the hardship which would be occasioned to Eui from not granting an injunction, as against the inconvenience imposed on the defendants by doing so. The hardship to Eui is not reduced by any increase in the perceived level of risk in using the right-of-way. Nor is the inconvenience to the defendants significantly increased. Counsel proposed that the defendants might be exposed to risk of prosecution for breach of OH&S legislation, but the employer is Eui, and the workplace – whether it be the truck, or the right-of-way – is under the control and responsibility of Eui. In any event, this is irrelevant, because were there an undisputed easement, the existence of any such risk would not entitle the defendants to obstruct it. The jurisdiction which this court is exercising is not concerned with the enforcement of OH&S legislation. Responsibility for the construction and maintenance of a right-of-way is that of the dominant owner. Eui wishes to repair and amend the causeway, but the defendants oppose and thus, at least for time being, prevent Eui from doing so. Counsel also proposed that there was risk to the welfare of the cattle being carried, and perhaps the drivers of the vehicles. But that is not an inconvenience or prejudice to the defendants, who in any event were, before McDougall J, quite prepared to propose that the cattle be carted over the more dangerous Cranky Corner Road and there exposed to risk of injury or death. 21 Accordingly, I conclude that there has been no new circumstance emerging since McDougall J's judgment which would warrant re-opening the question of interlocutory relief, determined as it was in a contested hearing only three months ago. The safety of the user of the right-of-way was a matter issue before his Honour. Nothing has changed in the relevant sense since then. Moreover, the new evidence does not in fact affect the balance of convenience in any significant way: neither is the hardship to Eui reduced, nor the inconvenience to the defendants significantly increased, by any increase in the perceived level of risk in using the right-of-way. All that is involved in this application is a review on the same facts as prevailed when interlocutory relief was previously granted, or on facts which ought then reasonably have been in contemplation. No new facts – as distinct from additional evidence, which could have been available previously, of facts already in contemplation - have emerged which may affect the balance of convenience. 22 For those reasons, therefore, I dismissed the defendants' motion, with costs. ********** 17/11/2005 - - Paragraph(s) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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