Carroll v Clarence Valley Council [2016] NSWSC 745

Supreme Court New South Wales

Medium Neutral Citation: Carroll v Clarence Valley Council [2016] NSWSC 745 Hearing dates: 3 June 2016 Date of orders: 03 June 2016 Decision date: 03 June 2016 Jurisdiction: Common Law Before: Wilson J Decision: 1. The application for an adjournment is refused. 2. Leave is granted to the plaintiff to discontinue proceedings, commenced by the Amended Statement of Claim dated 6 August 2014. 3. Costs are awarded in favour of the defendant against the plaintiff. Catchwords: REAL PROPERTY – allegation of trespass – allegation that road constructed on property by defendant – adjournment application opposed by defendant – claim advanced by plaintiff cannot succeed – application refused – leave granted to plaintiff to discontinue proceedings Category: Principal judgment Parties: Lorraine Carroll (Plaintiff) Clarence Valley Council (Defendant) Representation: Counsel: Mr J Nathan (Plaintiff) Mr R G R Parker SC (Defendant)

Solicitors: McKean Park Lawyers (Plaintiff) Mills Oakley Lawyers (Defendant) File Number(s): 2014/88411 Publication restriction: None

EX TEMPORE Judgment 1. Proceedings were commenced by the plaintiff in March 2014 originally seeking a declaration in relation to land, together with action for trespass and consequential damages. In brief, the plaintiff's claim is that the defendant encroached upon land which she believes herself to own and has caused damage to that land. 2. The Statement of Claim was replaced with an Amended Statement of Claim filed on 16 May 2014. The Amended Statement of Claim replaced in its entirety the original Statement of Claim. It alleged that the defendant was responsible for trespass to the plaintiff's land, adjacent to the Clarence River, for the purpose of surveying a road. It also alleges that the defendant constructed a road, together with underground services, on land which the plaintiff maintains is her land. The construction of the road involved the removal of fences which, of course, is essential on rural properties in order to maintain livestock, another damage that the plaintiff asserts was occasioned. 3. The plaintiff sought, originally, a declaration that the southern boundary of the land is the current mean high watermark of the northern shore of the Clarence River. The plaintiff also sought a permanent injunction restraining the defendant from unauthorised entry upon the land, together with orders for damages, interest and costs. 4. Having been commenced over two years ago the matter has now been before the Court for some reasonably significant period of time and there have been numerous mentions before the Court, principally in the Registrar's list, although the matter was additionally before Hall J. 5. Prior to 21 September 2015, there have been a number of mentions where there had either been no appearance for the plaintiff or where orders made by the Registrar had not been complied with. As I understand it, that was principally to do with some difficulty in retaining and funding legal representation and the necessary expert evidence to support the claim. 6. The matter was before Hall J in the Duty List on 21 September 2015 so that his Honour might deal with a Notice of Motion filed on 20 August 2015 by the plaintiff seeking leave to rely upon further evidence in the proceedings. In giving an ex tempore judgment on that occasion, his Honour observed that it was apparent that the question as to the boundary line on the southern border of the land would be a matter requiring some investigation of the history of the title of the property and perhaps, additionally, further survey evidence to identify the proper southern boundary. 7. His Honour cautioned the plaintiff during the course of his judgment that it would be prudent for her to consider whether proceedings before this Court provided the best avenue for ascertaining the boundary of the land, preparatory to pursuing her claim. His Honour suggested that perhaps the matter could be ventilated and resolved in some other, and certainly more cost effective, way. 8. The matter continued and was fixed for hearing today with a one day estimate. The hearing date was fixed by Registrar Bradford on 14 December 2015 and, accordingly, has now been fixed for about six months. 9. The parties have prepared the matter and the defendant has been put to the trouble and expense of retaining an expert to provide expert evidence and prepare the matter for hearing. Today, Senior Counsel has been briefed to conduct the hearing and I am advised that the matter is ready to proceed for the defendant and that the defendant seeks to have the matter dealt with. 10. Leave has been granted in Court this morning to the plaintiff to file a Notice of Motion together with an affidavit in support. The Notice of Motion seeks the vacation of this morning's hearing date. 11. The affidavit in support of the application is sworn by Mr Rowland Burt on 3 June 2016. Mr Burt is the solicitor for the plaintiff in the proceedings. He deposes that he has consulted with experienced counsel, that is, counsel experienced in real property matters, and came to the view, for the first time on 2 June 2016, that the plaintiff's case has what are referred to in the affidavit evidence as "certain difficulties." The nature of the difficulties has not been disclosed, with Mr Burt proposing that legal professional privilege prevents him from disclosing that information to the Court. 12. Mr Burt deposes that the difficulties noted cannot be overcome in time for today's proceedings because further investigation of the property is required, those investigations involving a detailed survey as to whether Old Ferry Road, which is a road passing through the plaintiff's land, was in fact built in the correct location as noted on the Deposited Plan 1105380. 13. Mr Burt's inquiries are that obtaining such evidence would take a not insignificant period of time, certainly running into some weeks, and there would then be the need for counsel to consider any information or evidence produced as a result of the survey. 14. It is on that basis that the plaintiff seeks an adjournment of today's hearing. 15. An offer has been made to the defendant for payment of costs thrown away in preparation of the hearing today, but the defendant's position is that notwithstanding the offer of costs, the application for adjournment is opposed. 16. In support of its position, the defendant has tendered to the court Exhibit 1, which are a series of five maps and plans of the plaintiff's land which shows both the location of Old Ferry Road and the location of the river, relevant to the land and Old Ferry Road. 17. It would seem from that information that the position of the river, since the grant of the land in the 19th century, has shifted and that is of direct relevance to the likelihood of the success of the plaintiff's claim articulated in the Amended Statement of Claim. 18. The claim in fact now pursued in the Amended Statement of Claim, the Court has been advised this morning, is a declaration as to the location of the southern boundary of the land. The other claims have been abandoned. 19. On the material provided by the defendant in Exhibit 1, it appears, as the defendant asserts, that the claim advanced by the plaintiff cannot succeed. 20. It is on that basis that the defendant says that there should be no adjournment of the hearing date, particularly in circumstances where what that adjournment would effectively permit is for the plaintiff to explore whether some other basis of action may be open to her. The defendant submits that the just outcome is for the claim placed before the Court for hearing to be determined, rather than incur further delay and further costs in permitting an adjournment to explore whether there is some alternative action available. 21. I am not unsympathetic to the position of the plaintiff. Proceedings before this Court are difficult and expensive for an individual litigant without the support of institutional funding. However, there is considerable force in the submissions made on behalf of the defendant, that is, it would appear that the plaintiff's long held understanding as to the location of her boundary has been misplaced and, accordingly, there has been no trespass to her property. 22. The declaration that is sought may or may not have some basis, but on the current evidence before the court it would appear that it has very limited, or perhaps no, prospect of success. The only potential advantage that I can see to the plaintiff in granting the adjournment is insofar as that may have some impact on a costs order against her. But even that advantage, it seems to me, must be minimal in circumstances where she has offered to pay the costs thrown away by the defendant today and it seems almost inevitable that a costs order would be made to this point, notwithstanding some further action that may transpire to be available to the plaintiff with further investigation. 23. Looking back at the history of the matter, Justice Hall's comments appear to be prescient and it is perhaps a pity that more was not done after September 2015 to follow up those things that his Honour referred to. 24. If the adjournment application is refused today, I am advised by counsel for the plaintiff that leave will be sought to discontinue these proceedings. That course would not bar the plaintiff from taking some appropriate action in the future, if it were to be the case that further investigations revealed that a cause of action is in fact available to her. I have regard to that in determining the application for an adjournment. 25. There is a significant public interest in these proceedings being dealt with with expedition and efficiency and, whilst I understand why that may not have been done in this case, it does not detract from the position that the defendant has been put to significant cost to meet a claim which appears to be doomed and in relation to which it cannot be said with any confidence that further evidence might make it good. 26. Accordingly I think justice does require that the application for an adjournment be refused.