Robert John Downing v WIN Television (NSW) Pty Ltd (No 3) [2011] NSWSC 703

Supreme Court New South Wales

Medium Neutral Citation: Robert John Downing v WIN Television (NSW) Pty Ltd (No 3) [2011] NSWSC 703 Hearing dates: 7 July 2011 Decision date: 08 July 2011 Before: Ball J Decision: The Plaintiff's motion filed 1 July 2011 be dismissed with costs Catchwords: PROCEDURE - civil - judgments and orders - reopening hearing after judgment delivered - application dismissed Legislation Cited: Supreme Court Rules 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Robert John Downing v WIN Television (NSW) Pty Ltd (No 2) [2011] NSWSC 563 Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 Category: Consequential orders Parties: Robert John Downing (Plaintiff) WIN Television (NSW) Pty Ltd (First Defendant) Prime Television Limited (Second Defendant) The State of New South Wales (Third Defendant) Representation: G A Elliott (Plaintiff) D R Stack (Defendants) Galland Elder Lulham Solicitors (Plaintiff) Thomson Lawyers (Defendants) File Number(s): 2007/253463

Judgment 1On 17 June 2011 I delivered a judgment in this matter ([2011] NSWSC 563) in relation to the assessment of damages payable by the first defendant ( WIN ) to the plaintiff ( Mr Downing ) in relation to the defendants' trespass on Mr Downing's land. 2The parties accepted that the measure of damages for trespass was the reasonable or market rental value of the land on which the defendants had trespassed during the time of the trespass. 3In assessing that amount, I concluded that the best comparable for determining the rental was the rent WIN agreed to pay for an area of land on an adjacent property which was owned at the time by Mrs Fitch. That land was roughly the same size as the area of land occupied by WIN on Mr Downing's property and is used by WIN for the same purpose as the purpose for which WIN used Mr Downing's land - that is, for the erection of a tower and associated building for the transmission of television and microwave signals. 4Originally, WIN agreed to pay a rent of $5,000 for the area it occupied on Mrs Fitch's land. However, by a deed of variation dated 30 March 2007, the rent was increased to $14,500 per annum. In addition, Mrs Fitch agreed to grant WIN an easement for "access and services" for $40,000. On the same day, Mrs Fitch executed an easement and variation of lease, both of which were in registrable form. 5In my earlier judgment, I concluded that the rent of $14,500 rather than the rent of $5,000 should be used in assessing Mr Downing's damages. In reaching that conclusion I said (at [13]): Although WIN had erected a tower on Mrs Fitch's land before the variation was agreed to, it did not use that tower until 2008. The evidence suggests that it was not in a position to do so before that time because it had not resolved the issue of a power supply. WIN led no evidence to explain why it agreed to the variation. In those circumstances, I think it is reasonable to infer that the variation was required to permit WIN to do something which was necessary to enable it to operate its tower in the way it had done previously on Mr Downing's land. 6During the course of oral argument in relation to the damages hearing, Mr Elliott, who appeared for Mr Downing, submitted that, in determining the damages payable by WIN, I should also take into account the amount paid by WIN for the easement and I should amortise that amount over 9 years and add it to the rent payable under the lease granted by Mrs Fitch in order to arrive at a true measure of Mr Downing's loss. That was because the easement granted by Mrs Fitch was to enable WIN to obtain power to WIN's facilities on Mrs Fitch's land whereas power was already available at Mr Downing's land. To treat Mrs Fitch's land as a true comparable involved including the cost of making power available to it. Mr Elliott points out that I did not deal with that argument in my judgment and submits that I should reopen my judgment to deal with it (favourably to Mr Downing) now. 7WIN accepts that I have power to reopen my judgment. That power is granted by UCPR r 36.16(1), which provides: The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. In commenting on a similar power given by Pt 40 r 9(1) of the Supreme Court Rules 1970, Brennan, Dawson, Toohey and Gaudron JJ said in Smith v New South Wales Bar Association [1992] HCA 36 at [27]; (1992) 176 CLR 256 at 265: As already mentioned, the orders of 9 May 1991 had not been entered when the appellant made his application for re-opening. It has long been the common law that a court may review, correct or alter its judgment at any time until its order has been perfected. Part 40, r. 9(1) of the Supreme Court Rules (NSW) also provides that "[that] Court may set aside or vary a judgment where notice of motion for the setting aside or variation is filed before entry of the judgment". The power is discretionary and, although it exists up until the entry of judgment, it is one that is exercised having regard to the public interest in maintaining the finality of litigation. Thus, if reasons for judgment have been given, the power is only exercised if there is some matter calling for review. And there may be more or less reluctance to exercise the power depending on whether there is an avenue of appeal. It is important that it be understood that these considerations may tend against the re-opening of a case, but they are not matters which bear on the nature of the review to be undertaken once the case is re-opened, as this case was [footnotes omitted]. 8Mr Elliott submits that I should reopen my earlier judgment because I overlooked dealing with the issue he raised. It is correct that I did not deal with that issue. However, I did conclude that the rent payable by WIN to Mrs Fitch was an appropriate measure of Mr Downing's loss. In those circumstances, what Mr Elliott seeks is an order that I reopen my earlier judgment to correct what is, in his submission, a mistake. In my opinion, it is not appropriate that I do so. I say that for two reasons. 9First, it is far from obvious to me that my earlier judgment involved an error. There was very little evidence available concerning power to either site. So far as Mr Downing's land was concerned, it was not clear how WIN obtained power at that site, although there was evidence that there was a diesel generator located at the site. There was no suggestion that WIN exercised rights in the nature of an easement for which Mr Downing should receive compensation over and above the compensation he was entitled to receive for WIN's trespass in relation to the area it occupied. So far as Mrs Fitch's land was concerned, it might be inferred that the additional rent payable by WIN and the easement were both connected with an issue in relation to the power supply. However, the easement involved WIN obtaining proprietary rights over part of Mrs Fitch's land for which there was no equivalent (unlawful) exercise of rights by WIN in relation to Mr Downing's land. The amount payable for the easement was not large considering that it was a single payment for an easement that appears to have been granted for an indefinite period of time. It was granted for access and services generally. On the other hand, the increase in rent payable by WIN was substantial. In those circumstances, it might be inferred that the amount payable for the easement was intended to be paid to secure the rights in respect of the land itself, and the increase in rent was to permit WIN to use the leased land in the same way that it had used Mr Downing's land. Consequently, it was that rent and not the amount paid for the easement which accurately reflected the value of Mr Downing's land to WIN. 10Moreover, Mr Paris, Mr Downing's own expert, conceded in cross-examination that not all the costs of achieving what WIN had on Mr Downing's land could properly be attributed to the value of that land and, in particular, the rent that should be paid for the occupation of that land. For example, Mr Paris gave the following evidence in relation to determining an appropriate rent for Mr Downing's land: Q: Let me put it more squarely, you certainly would not have regard, in effect, the costs associated with erecting the tower on the property, would you? A: Well, the cost of erecting the tower on the site is a matter for WIN. Q: Is that right, go on? A: They would in the normal course of events one would expect them to take into account when they were negotiating a lease on anything. Q: It is a matter for WIN's own commercial judgment how much it was going to cost them to install the equipment on the land? A: Yes. Q: And the same with installing power on the land, it is a commercial matter for WIN and WIN alone, isn't it? A: Yes. This evidence supports the conclusion that the costs of obtaining the easement should not be treated as relevant to the value of the land occupied by WIN. 11Secondly, even if my earlier judgment involved an error, it is not appropriate to reopen it to correct that error. I was aware of the easement and the amount that WIN had paid for it. I think it is to be inferred from the conclusion that I reached that I did not think that the easement was relevant to the assessment of Mr Downing's damages. If that was an error, then that is a matter that can be raised on appeal along with any other error that either party believes that I have made. The public interest in maintaining the finality of litigation referred to by the High Court in Smith v New South Wales Bar Association would prevent either party from seeking to reopen my judgment so that I could reconsider other errors that it might be submitted I have made. I do not think that the issue identified by Mr Elliott falls into a different category. 12Mr Downing's motion filed 1 July 2011 should be dismissed with costs.