Coleman v Bicknell & Ors [2021] QDC 302

DISTRICT COURT OF QUEENSLAND CITATION: Coleman v Bicknell & Ors [2021] QDC 302 PARTIES: RUSSELL GRAHAM COLEMAN (plaintiff) v NATALIE EILEEN BICKNELL (first defendant) and DAVID JOHN BICKNELL (second defendant) and ADAM JOHN COLEMAN (second defendant by counterclaim) FILE NO: 1311/2016 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: DELIVERED ON: 3 December 2021 DELIVERED AT: Brisbane HEARING DATE: 1, 2, 3 and 17 September 2021 JUDGE: Jarro DCJ ORDER: The claim is dismissed. The counterclaim is dismissed. CATCHWORDS: TORTS – NUISANCE – PRIVATE NUISANCE – PARTICULAR CASES – NOISE – where the plaintiff and the defendant were neighbours – where the defendants installed wind chimes – whether the noise generated by the wind chimes constituted a nuisance. TORTS – ABUSE OF LEGAL PROCESS – MALICIOUS PROSECUTION – GENERALLY – where the defendants instituted proceedings under s 5 of the Peace of Good Behaviour Act 1982 – where the proceedings were dismissed – whether in instituting and maintaining the prosecution of the complaint, the defendants acted maliciously instead of for a proper purpose. TORTS – NUISANACE – PRIVATE NUISANCE – PARTICULAR CASES – NOISE – where the plaintiff and the defendant were neighbours – whether various particularised acts made, and were caused to be made, loud and unreasonable noise for the plaintiff by counterclaim. -- 1 of 23 -- 2 TORTS – INTERFERENCE WITH THE PROPERTY - where the plaintiff and the defendant were neighbours – whether various particularised acts constituted trespass to the plaintiff by counterclaim’s real and personal property. TORTS – INTERFERENCE WITH THE PERSON – TRESPASS TO THE PERSON – GENERALLY – where the plaintiff and the defendant were neighbours – whether various particularised acts constituted trespass to the plaintiff by counterclaim’s person. LEGISLATION: Peace and Good Behaviour Act 1982 CASES: A v NSW (2007) 230 CLR 500 Briginshaw v Briginshaw (1938) 60 CLR 336 Butler v Simmonds Crowley & Galvin [1999] QCA 475 Everett v Ribbands & Another (1952) 2 QB 198 Gooley v Curtain [1876] VLR 103 Leigh v Bruder Expedition Pty Ltd [2020] QCA 246 COUNSEL: P Hackett for the plaintiff R M De Luci for the defendants SOLICITORS: Colwell Wright Solicitors for the plaintiff Robinson Locke Litigation Lawyers for the defendants [1] Neighbourly relations can be fraught and fragile and it is a pity when people cannot just be adults and get on with it. This a case where credit looms large and there are concerns about the credibility and reliability of the evidence of all witnesses as each of them has engaged in conduct which reflects poorly upon them. Suitably submitted by Mr Hackett of Counsel who appeared for the plaintiff (and defendants by counterclaim), all of them have ‘skin in the game’. Background Facts [2] The parties were once neighbours in a residential canal estate at Dorsal Drive, Birkdale for about five years between 2011 and 2016 until the defendants (Mr and Mrs Bicknell) sold and moved away with their two young sons. [3] The plaintiff, Mr Coleman Snr, originally sought essentially injunctive relief to prevent continuance of a nuisance which he alleged Mr and Mrs Bicknell committed. The nuisance emanated from wind chimes located in the Bicknells’ courtyard which adjoined Mr Coleman Snr’s property. The injunctive relief subsequently became unnecessary (because the wind chimes were suspiciously glued, cut down and removed altogether) and ultimately the parties no longer lived next door to each other. Leave was granted for Mr Coleman Snr to pursue his former neighbours with an additional claim for damages for malicious prosecution because Mr and Mrs Bicknell had their complaints against Mr Coleman Snr dismissed under the Peace and Good Behaviour Act 1982. Mr Coleman Snr has, inter alia, maintained that in making and -- 2 of 23 -- 2 maintaining the prosecution of those complaints, Mr and Mrs Bicknell acted maliciously and predominately out of spite, including appearing on a segment on “A Current Affair” which was intended, he says, to embarrass and bring scorn upon him. [4] Unfortunately, some neighbourly relations can contribute to situations such as the present where Mr and Mrs Bicknell vigorously defend the allegations levelled against them. They have also counterclaimed against Mr Coleman Snr and his adult son, being the second defendant by counterclaim, by way of private nuisance, trespass to real and personal property and an assault. They say these actions are due to years of physical and verbal threats and abuse and intimidation (including eggs being thrown onto their house and car). [5] Whilst a relatively modest amount has been sought by Mr Coleman Snr, Mr and Mrs Bicknell pursue a claim for an amount of more than $300,000 damages (which includes aggravated and exemplary damages). [6] For reasons to follow, neither party has been successful such that each of the parties’ claims is dismissed. Mr Coleman Snr’s Claim Claim for Nuisance [7] Dividing the houses of Mr Coleman Snr and Mr and Mrs Bicknell is a solid block fence of approximately two metres in height. The dividing fence runs until approximately 10 metres from the rear boundary. At the rear boundary is a canal located in close proximity to the Moreton Bay. Next to the dividing fence on the Bicknell side is a paved courtyard. The courtyard roughly extends along the dividing fence.1 Mr Coleman Snr’s bedroom and home office is adjacent to the courtyard. [8] Mr Coleman Snr has claimed that since approximately January 2012 until approximately October 2016, Mr and/or Mrs Bicknell hung wind chimes in the courtyard. One set of wind chimes hung in the courtyard from about January 2012 until approximately January 2014. Another set of wind chimes were hung from the fence in the courtyard from approximately January 2014 until approximately October 2016. In total, he says three separate wind chimes were hung from the fence in the courtyard and those wind chimes remained so situated until Mr and Mrs Bicknell vacated their property in about October 2016. [9] In their pleading, Mr and Mrs Bicknell admit that there was only ever one set of wind chimes, not three, which were located in their courtyard. They pleaded that the one set of wind chimes was never hung from the fence.2 However, a photograph was tendered which clearly shows that a set of wind chimes was hung on the fence, attached to a hanging pot.3 This is but one feature which casts doubt upon the credibility and reliability of their evidence. [10] According to Mr Coleman Snr, the noise created by the wind chimes could be heard from his house and more relevantly his bedroom and home office such that they reasonably interfered with his interest in the beneficial use of his own property. The 1 For specific measurements, see Amended Statement of Claim, [6]. 2 Second Amended Defence, [3]. 3 Exhibit 3. -- 3 of 23 -- 3 wind chimes created noise which could be heard whenever the component parts of the wind chimes were moved by wind, on most days and nights, and often for extended periods of time. The noise, according to Mr Coleman Snr, was so loud and intense, it was “discordant” and “annoying and irksome”. The noise was so bad that it caused him to lose sleep, to lose concentration and to be unable to work comfortably in his home office between January 2012 and October 2016. It would materially interfere with the ordinary pleasure, comfort and enjoyment of a person of normal fortitude occupying his house. Such was the nuisance, that by February 2014, Mr Coleman Snr engaged solicitors to send a letter of demand to Mr and Mrs Bicknell to cease the noise.4 The Bicknells did not do so. [11] Mr and Mrs Bicknell pleaded and gave evidence that the noise from the wind chimes did not unreasonably interfere in Mr Coleman’s interest in the beneficial use of his property because: (a) the wind chimes rarely rang due to the location, it being mostly protected from wind gusts; (b) when the wind chimes rang, they did not do so for an extended period of time; (c) the noise created was not unusual or excessive, was not loud or intense, was not discordant, annoying or irksome; (d) the wind chimes could not have caused Mr Coleman Snr to lose concentration or be unable to work comfortably in his home office; (e) the wind chimes did not materially interfere with the ordinary pleasure, comfort and enjoyment of “the normal person” occupying the house; (f) there are no longer wind chimes on the Bicknells’ property. [12] For Mr Coleman to succeed in his claim for nuisance against Mr and/or Mrs Bicknell, he must prove the following: (a) he has title to sue in respect of the nuisance;5 (b) that Mr and/or Mrs Bicknell has/have interfered with his right to use and enjoy his land;6 and (c) the interference must be material or unreasonable.7 [13] Negligence is not a necessary ingredient to establish a cause of action in private nuisance.8 It is the latter two elements which Mr Coleman needs to demonstrate on balance because, as the owner of his house, he has a legal right to its use and enjoyment without interference from others. 4 Exhibit 2, pages 7 – 9. 5 Benning v Wong (1969) 122 CLR 249 at 320. 6 Bridlington Relay Ltd v Yorkshire Electricity Board [1965] Ch 436 at 447; Hargrave v Goldman (1963) 110 CLR 40 at 59 quoting from Winfield on Torts, 6 lh ed (1954) p 536; Melaleuca Estate Pty Ltd v Port Stephens Council (2006) 143 LGERA 319, 327 [22]; Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514, 545 [138]. 7 Melaleuca Estate Pty Ltd v Port Stephens Council (2006) 143 LGERA 319, 327 at [22]; Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514, 545, [138]. 8 Sedleigh-Denfield v O’Callaghan [1940] AC 880 at 897. -- 4 of 23 -- 4 [14] Regarding the issue of interference and whether it is material or unreasonable, the circumstances of the case, examined objectively, will determine the success or otherwise of the action. In an instance such as this where noise is concerned, it is a question of degree and one which requires delicately balancing the rights of each parties’ use and enjoyment of their own land. [15] I accept the noise generated from the wind chimes caused annoyance for Mr Coleman Snr. Much is so because, not only did Mr Coleman Snr engage solicitors to write to Mr and Mrs Bicknell to demand the wind chimes be removed, but a complaint about the noise was made to the Redlands City Council. The Council investigated the issue. Mr Coleman Snr gave evidence that he double glazed the windows on the areas closest to the Bicknells to stop the noise. He said he had to move his wife, who was alive but ill at the time, to the other side of the house. This evidence was corroborated by Mr Coleman Jnr. Whether it was one, two or even three sets of wind chimes located within the courtyard of the Bicknell’s property, I am satisfied the wind chimes interfered with Mr Coleman Snr’s use and enjoyment of his land. [16] At law, interference may occur which is reasonable, and therefore not actionable.9 An unreasonable interference is determined by reference to ordinary standards of reasonableness according to the ordinary usages of people living in society or in a particular society.10 An interference will be considered unreasonable if it materially interferes with the ordinary physical comfort of human existence11, regard being had to the character of the locality of the land12, the standard of comfort that a person living in the area may reasonably expect, 13 the duration of the interference,14 the social or public interest value in the defendant’s activity15 and the hypersensitivity (if any) of the user or use of the plaintiff’s land. 16 [17] It was contended by Mr Coleman Snr that the Bicknells clearly knew that their wind chimes annoyed him. Not only did they refuse to remove them for essentially that very reason17, but they added more wind chimes, and placed them on the dividing wall between their property and Mr Coleman’s where they were likely to cause more annoyance. They then lied about the number and location of their wind chimes to the Council (as there was only one in situ when they investigated)18 and in their defence. The only credible explanation for that lie, it was submitted, is an appreciation that downplaying the number and location of wind chimes was necessary to avoid liability to Mr Coleman. [18] It was submitted that Mr and Mrs Bicknell went so far as to play “mechanical” wind chime noises when there was no wind. The Bicknells denied such conduct, but as part of the general preference of credit of the Colemans over the Bicknells, it was submitted the Court should accept Mr Coleman’s allegation. It was made as long ago 9 Melaleuca Estate Pty Ltd v Port Stephens Council (2006) 143 LGERA 319, 327, [22]. 10 Ibid. 11 Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514, 545, [138]. 12 Ibid. 13 Ibid. 14 Harrison v Southwark and Vauxhall Water Co [1891] 2 Ch 409 at 414. 15 Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management (2012) 42 WAR 287, 310, [118]. 16 Ibid. 17 T3-38, line 10. 18 T2-45, line 15 and T3-32, line 40. -- 5 of 23 -- 5 as the letter from Mr Coleman’s solicitor to the defendants of 17 February 2014, and in recorded altercations between the parties.19 [19] It was also submitted that the location of the relevant properties on the water near Moreton Bay was relevant in that it was prone to experiencing frequent winds20, which caused the wind chimes to chime more often than they might in another location. [20] It was submitted that the Court heard, through the recordings which were tendered, many examples of the wind chime noise, during the day and night, some of which could be heard over loud music coming from the Bicknells’ residence. The noise could properly be described as loud and intense, discordant, annoying and irksome, at inopportune times, and often for long periods. It was therefore submitted that the noise materially and unreasonably interfered with Mr Coleman’s use and enjoyment of his land. [21] Evidence was tendered at trial of a number of recordings, more particularly five sample recordings from Mr Coleman’s security footage as evidence of the wind chime noise that could be heard from his house.21 Having listened to the recordings, I am not satisfactorily convinced that it is an accurate representation of the actual noise levels being permeated on each relevant occasion. I cannot be satisfied to an appropriate standard that the sounds from the recordings are actually what is normally heard because it is natural for noise, located closer to the recording sensor, to be amplified through the recording. In addition, there was a constant, loud background noise (suggested by Mr Coleman to be wind) at times when I observed the trees depicted in the recording were not moving consistently with there being any wind.22 Further there was noise from cars on the road, as well as voices in the yard below. These noises were, at times, much louder than what would otherwise have been heard by a person in the location of the camera recording the footage in question.23 The recordings on their own, in my view, do not assist Mr Coleman Snr’s assertions to enable a finding that the interference produced from the wind chimes was material or unreasonable as it is not sufficiently reliable evidence of the actual noise from the location of Mr Coleman’s property. In other words, I am not persuaded that the noise I heard from the tendered recordings would be the actual noise a person would normally hear because to me, the baseline level of sound from all sources were louder than would normally be expected. Further in all of the tendered recordings, there was the presence of noise typically encountered in suburbia. Additionally, in the recordings, the wind chimes only produced noise when tree branches were moving (indicative of wind gust) but some occasions when there was tree movement, no noise was generated. I am also not prepared to accept the evidence of Mr Coleman Snr alone unless corroborated by sufficiently persuasive evidence given he, like the Bicknells, has a vested interest in the outcome of this proceeding, against a background where the Bicknells, in their evidence, denied the assertion of the noise nuisance. [22] Because of the seriousness of the allegations each side make against one another, I am mindful of the need for each party to sufficiently prove and make good any 19 For instance Exhibit 7 (recording on 9 November 2015 at about 0:30). 20 T1-30, line 5. 21 Exhibit 5. 22 See from T1-40, line 31. Also Exhibit 5, video dated 5 February 2016 at approximately 2:30. 23 See from Tl-41, line 6. -- 6 of 23 -- 6 assertion. Therefore, any proof of the allegations are to be made on the balance of probabilities in conformity with the sliding standard of satisfaction explained in Briginshaw v Briginshaw (1938) 60 CLR 336. In this respect, Mr Hackett of Counsel drew my attention to the recent summary of Sofronoff P in Leigh v Bruder Expedition Pty Ltd [2020] QCA 246: [14] Briginshaw was a divorce case in which the husband had to prove that his wife had committed adultery. The High Court held that the standard of proof was proof on the balance of probabilities rather than beyond a reasonable doubt. The controversy between the parties about the standard of proof arose because the co- respondent submitted that the criminal standard of proof applied, having regard to the seriousness of the allegation which was the subject of proof. [15] Latham CJ observed that the standard of proof will vary in accordance with the seriousness or importance of the issue. His Honour quoted the following passage from Wills’ Circumstantial Evidence: Men will pronounce without hesitation that a person owes another a hundred pounds on evidence which they certainly would not hang him, and yet all the rules of law applying to one case apply to the other and the processes are the same. [16] Dixon J said that the application of the civil standard to proof of facts was not a mere mechanical comparison of probabilities. Rather, the fact finder must feel an actual persuasion of the occurrence of the relevant fact before its existence can be found. An opinion that a state of facts exists may be held according to indefinite gradations of certainty. However, except in criminal cases, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. Reasonable satisfaction on the balance of probabilities is not a slate of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. In particular, the seriousness of the allegation made, the inherent unlikelihood of an occurrence, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. His Honour said: This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based upon a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. -- 7 of 23 -- 7 [23] Mr Bicknell said, to his recollection, the wind chimes would rarely make noise.24 I accept that evidence because it is corroborated by Mrs Bicknell who noted the chime was no louder than any other background noise25 and some of the recordings collectively assist the Bicknells in that respect. However there is some evidence from Mr Bicknell which I am not prepared to accept. For example, Mr Bicknell said that the courtyard was not very susceptible to wind.26 Like all witnesses in this matter, I found Mr Bicknell’s evidence not entirely credible. His evidence was at times equivocal. For instance, at one stage during his evidence, Mr Bicknell said that his courtyard was “virtually” enclosed giving me the impression it was well, if not completely, protected from the elements of weather, including wind. He did not resile from that position even under cross-examination. The following exchanged occurred with Mr Hackett of Counsel, which was not inconsistent with Mr Bicknell’s other evidence, impressing upon me a resistance to make reasonable concessions:27 And you give evidence of photographs by way of your courtyard, which are now in evidence in this proceeding, but you say it’s fully enclosed. Your courtyard is not fully enclosed, is it? It’s open at each end?---It’s open for a small area at one end. It is fully enclosed on three sides. Mr Bicknell, the courtyard we see depicted in the photograph of the street end is – has a gate at its boundary, correct?---That is correct, yes. The roof doesn’t extend to the gate, does it?---No, it does not. And air flowing through from the canal side can clearly flow through the courtyard and over the gate, can’t it?---It could, yes. And does, doesn’t it?---Not often, no. Mr Bicknell, we’ve seen multiple videos in this proceedings of the wind howling down the side area adjourning your property and Mr Coleman’s property, haven’t we?---We have, yes. And you’d seriously then maintain that your courtyard is protected from wind?---The footage shows the trees blowing that – all above the fence line and above the roof line. But the wind channels through your courtyard, doesn’t it?---At that height, above the roof, yes. And below the roof as well?---Not often below the roof, no. [24] The courtyard photographs demonstrate that the courtyard was not completely protected. Mr Bicknell’s credibility would have improved had he simply made the concession that the courtyard was not fully enclosed rather than seeking to be evasive under cross-examination. [25] In any event as was highlighted on behalf of Mr and Mrs Bicknell, which I am prepared to accept, the location of the wind chimes was in a somewhat enclosed space, 24 T2-9, line 41. 25 T3-7, lines 22 – 35. 26 T2-9, lines 43 – 46. 27 T2-54, line 27 to T2-55, line 8. -- 8 of 23 -- 8 covered by a pergola, surrounded by gardens and the dividing fence.28 This is notwithstanding my appreciation that the location of the neighbouring properties was on a canal near Moreton Bay, which would have been prone to experiencing winds, which might cause the wind chimes to chime more often than they might in another location. But the evidence tended to show Mr Coleman has an unusual sensitivity to everyday noises. Tellingly Mr Coleman gave evidence that the portion of one of the recordings he tendered29 in which he could hear wind chimes was about 50 to 60 per cent,30 which is simply not supported by the footage. In addition, Mr and Mrs Bicknell both gave evidence of police coming around to investigate complaints of noise during an afternoon barbeque, a children’s water balloon fight, an afternoon movie and when the Bicknells were chopping wood for a fire.31 Whilst Mr Coleman denied that he made any unjustified complaints to the police about noise made by the Bicknells32, there is still a propensity to make a number of complaints, perhaps not from someone who is overly sensitive to noise. [26] The photographs also show that of the set of wind chimes present, one set appears to be wooden, which according to Mrs Bicknell, and I accept, made no noise and served the purpose of decoration only.33 Further according to Mrs Bicknell, there was a miniature wind chime given to her as a gift which made no audible noise beyond tinkling of cutlery and was thrown out shortly after it was received.34 I have no reason not to accept the veracity of her evidence about this. [27] Objectively I am not satisfied the presence of the wind chimes and the noise generated from the chimes was material or unreasonable over the period Mr Coleman Snr complains. Rather I am satisfied the presence of the wind chimes and the noise generated from the chimes was reasonable. I have formed the view that Mr Coleman Snr was overly sensitive to the noise generated by the wind chimes, particularly given his overstatement of the noise generated in one of the recordings and my listening to the recordings produced at trial and for the matters I have already alluded to, such that I am not persuaded to the requisite standard that the noise was unreasonable or material. Accordingly, I dismiss this part of Mr Coleman Snr’s claim concerning nuisance. Claim for Malicious Prosecution [28] Regarding the malicious prosecution claim, insofar as it relates to Mrs Bicknell, Mrs Bicknell made a complaint on 5 April 2016 under s 5 of the Peace and Good Behaviour Act 1982. Because of that complaint, Mr Coleman Snr was required to appear and answer to allegations that on 4, 9 and 12 November 2015, he threatened to assault or do bodily injury to her and Mrs Bicknell was in fear of him. The Peace and Good Behaviour Act complaint was terminated in Mr Coleman’s favour when it was dismissed by the learned Magistrate sitting at the Magistrates Court of 28 Mr Coleman gave evidence of the height of the wall at T1 -42 line 35. The courtyard was described by Mr Bicknell at T2-9 from line 2 and also from line 43, and the wall at line 24, see also T2-10 line 2-3. The courtyard appears at pictures in Exhibit 8, Item 4. 29 Exhibit 5, video dated 5 Feb 2016. 30 Tl-42 lines 4-5. 31 See Mr Bicknell from T2-19 line 45 to T2-20 lines 3-10; Mrs Bicknell from T3-35 lines 23-30 and T3- 36 lines 13-23. 32 Tl-55 line 26. 33 T3-6, lines 2 – 12. See also Exhibit 3.2. 34 T3-3, line 26 to T3-5, line 39. -- 9 of 23 -- 9 Queensland, in Brisbane on 12 November 2018.35 As indicated earlier in these reasons, it was alleged by Mr Coleman that in instituting and maintaining the prosecution of the complaint, Mrs Bicknell acted maliciously in that she acted predominantly out of spite or animus towards Mr Coleman instead of for a proper purpose of instituting proceedings under that legislation. The particulars provided were: (a) Mrs Bicknell did not honestly know, believe or conclude that the alleged threat to assault or bodily harm was occasioned to her; (b) Mrs Bicknell and her husband were involved in “an ongoing neighbourhood dispute which caused her to bear animus towards” Mr Coleman; (c) Mrs Bicknell continued with the Peace and Good Behaviour Act complaint under after she vacated the Bicknell property; (d) that on 9 June 2016 Mrs Bicknell appeared on ‘A Current Affair’ in a segment intended by Mrs Bicknell to embarrass and bring scorn upon Mr Coleman. [29] Mr Coleman sought an amount of approximately $35,000 from Mrs Bicknell for her malicious prosecution, said to have comprised about $10,000, representing 50 per cent apportionment of the legal costs and disbursements in defending the Peace and Good Behaviour Act complaint; and $25,000 in general damages “for the stress, emotional distress and embarrassment occasioned to” Mr Coleman by Mrs Bicknell. Initially an additional amount of $10,000 was sought by way of aggravated or exemplary damages but was not pressed at trial on the basis that the award of general damages sought would serve adequately in the circumstances to express the Court’s disapproval of the defendant’s conduct. I consider the monetary amount sought is not unreasonable or an overly ambitious one, however before reaching that point, it is for Mr Coleman to prove malicious prosecution. [30] Similar allegations have been made by Mr Coleman against Mr Bicknell because Mr Bicknell too, like his wife, brought a complaint under the Peace and Good Behaviour Act on 17 November 2015 alleging that on 9 November 2015, Mr Coleman had threatened to: (a) assault or do bodily injury to Mr Bicknell; (b) to procure another person to assault or do bodily injury to Mr Bicknell; (c) to destroy or damage property of Mr Bicknell. [31] His complaint was dismissed on the same day as his wife’s complaint. [32] To be successful in an action for malicious prosecution, in Butler v Simmonds Crowley & Galvin [1999] QCA 475, the following was stated: [17] The claim in the writ is “unspecified damages resulting from malicious prosecution by the defendant”. The elements of the cause of action known as the tort of malicious prosecution are conveniently set out in Halsbury's Laws of England and may be conveniently summarised as requiring proof that: ‘(1) the prosecution by the defendant of a 35 Mr Bicknell’s complaint was also terminated. -- 10 of 23 -- 10 criminal charge against the plaintiff before a tribunal into whose proceedings the criminal courts are competent to inquire; (2) that the proceedings complained of terminated in the plaintiff’s favour; (3) that the defendant instituted or carried on the proceedings maliciously; (4) that there was an absence of reasonable and probable cause for the proceedings; and (5) that the plaintiff has suffered damage. [33] I accept as was submitted on behalf of Mr Coleman Snr that notwithstanding a Peace and Good Behaviour Act complaint is not a criminal proceeding36, the complaints instituted by Mr and Mrs Bicknell are a sufficient “prosecution” to sustain a claim for malicious prosecution because: (a) A complaint under the Peace and Good Behaviour Act is “analogous to a criminal proceeding”37. Indeed, proceedings on such a complaint are to be conducted in the same manner as for a complaint for a simple offence under the Justices Act 1886 “as if such complaint were a complaint in respect of such an offence”38; (b) The case of Everett v Ribbands & Anor, referred to in Laidlaw v Hulett [1996] QCA 469, was one relating to an action for malicious prosecution based on a defendant having “falsely and maliciously required sureties of the peace” against the plaintiff. The point in issue in the appeal was whether such an action could be maintained where sureties had been ordered (i.e., where the proceeding had not concluded in the plaintiff’s favour). It was determined that it could not be maintained, but in the course of the decision the ability to maintain a malicious prosecution action based upon an action seeking sureties was assumed. Lord Denning expressly concluded that an action could lie: In these circumstances it seems to me that the proceedings are analogous to a criminal proceeding and that no action lies for maliciously instituting them unless they ended favourably for the plaintiff. (c) In Gooley v Curtain [1876] VLR 103, the appellant had been non-suited at first instance on the basis that an action for malicious prosecution was not available for maliciously requiring sureties. The appeal was allowed on the basis that an action could lie. [34] Mr Coleman Snr was successful in having both Mr and Mrs Bicknell’s complaints dismissed. Orders were made to that effect on 12 November 2018. 36 Laidlaw v Hulett; ex parte Hulett [1996] QCA 469. 37 Laidlaw v Hulett; ex parte Hulett [1996] QCA 469 per Shepherdson J citing Lord Justice Denning in Everett v Ribbands & Another [1952] 2 QB 198, 206. 38 Peace and Good Behaviour Act 1982, s9 -- 11 of 23 -- 11 [35] The principal issue then becomes whether Mr and/or Mrs Bicknell instituted or carried on their Peace and Good Behaviour Act complaints maliciously. In considering this issue, I was assisted by Counsel for each party of the authority of A v NSW (2007) 230 CLR 500 on the question of what constitutes malice for the purpose of this tort. The High Court stated at [89] to [93] as follows: [89] Fleming rightly said that '"[m]alice” has proved a slippery word in the law of torts". It will be recalled that Lord Davey, in the passage of his speech in Allen v Flood set out earlier in these reasons, had spoken of the law giving protection to prosecutors even where there is no reasonable and probable cause for the prosecution, but losing that protection "if the person abuses his privilege for the indulgence of his personal spite". To the same general effect, Fleming said, of the use of the word "malice" in relation to this tort that: "At the root of it is the notion that the only proper purpose for the institution of criminal proceedings is to bring an offender to justice and thereby aid in the enforcement of the law, and that a prosecutor who is primarily animated by a different aim steps outside the pale, if the proceedings also happen to be destitute of reasonable cause." “Malice” in malicious prosecution is a separate element of the tort. It is to be contrasted with "malice in law" - what Kitto J described, citing Shearer v Shields, as "the unlawful intent which is present whenever an injurious act is done intentionally and without just cause or excuse". [90] No little difficulty arises, however, if attempts are made to relate what will suffice to prove malice to what will suffice to demonstrate absence of reasonable and probable cause. In particular, attempts to reduce that relationship to an aphorism - like, absence of reasonable cause is evidence of malice, but malice is never evidence of want of reasonable cause - may very well mislead. Proof of particular facts may supply evidence of both elements. For example, if the plaintiff demonstrates that a prosecution was launched on obviously insufficient material, the insufficiency of the material may support an inference of malice as well as demonstrate the absence of reasonable and probable cause. No universal rule relating proof of the separate elements can or should be stated. [91] What is clear is that, to constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law - an "illegitimate or oblique motive”. That improper purpose must be the sole or dominant purpose actuating the prosecutor. [92] Purposes held to be capable of constituting malice (other than spite or ill will) have included to punish the defendant and to stop a civil action brought by the accused against the prosecutor. But because there is no limit to the kinds of other purposes that may move one person to prosecute another, malice can be defined only by a negative proposition: a purpose other than a proper purpose. And as with absence of reasonable and probable cause, to attempt to identify exhaustively when the processes of the criminal law may properly be invoked (beyond the general proposition that they should be invoked with reasonable and probable cause) would direct attention away from what it is that the plaintiff has to prove in order to establish malice in -- 12 of 23 -- 12 an action for malicious prosecution - a purpose other than a proper purpose. [93] Two further observations should be made about the element of malice. First, its proof will often be a matter of inference. But it is proof that is required, not conjecture or suspicion. Secondly, the reference to "purposes other than a proper purpose" might be thought to bring into this realm of discourse principles applied in the law of defamation or in judicial review of administrative action. No doubt some parallels could be drawn with the principles applied in those areas. But drawing those parallels should not be permitted to obscure the distinctive character of the element of malice in this tort. It is an element that focuses upon the dominant purpose of the prosecutor and requires the identification of a purpose other than the proper invocation of the criminal law. [36] As was submitted on behalf of Mr Coleman Snr, the malicious intent alleged in the statement of claim is that the complaints were brought out of spite or animus towards Mr Coleman Snr. It was said that there was an absence of reasonable and probable cause, which pointed towards malice. [37] The submission advanced by Mr Coleman Snr is that to be successful in a peace and good behaviour complaint it is necessary for a complainant to demonstrate two matters under the relevant legislation.39 The first is proof of a threat to do bodily harm. Secondly the complainant must show he or she is in fear of the defendant carrying out the threat. Insofar as each Peace and Good Behaviour Act complaint was concerned, the following matters were highlighted: (a) Mr Bicknell’s complaint: (i) The complaint made by Mr Bicknell specified a number of alleged incidents on a number of dates. However, in the summons issued he only recorded that it had been substantiated to his satisfaction that on 9 and 12 November 2015 at Birkdale, Mr Coleman had threatened: (A) to assault or to do any bodily injury to the complainant or to any person under the care or charge of the complainant; (B) to procure any other person to assault or to do any bodily injury to the complainant or to any person under the care or charge of the complainant; and (C) to destroy or damage any property of the complainant, and that Mr Bicknell was in fear of him. (ii) In fact, 12 November 2015 was not a date mentioned in Mr Bicknell’s complaint, and on 23 March 2016 and again on the first day of the hearing rulings were given limiting Mr Bicknell’s complaint to events of 9 November 2015. (iii) The alleged threat “to assault or do any bodily injury” to Mr Bicknell on 9 November 2015 was said in Mr Bicknell’s affidavit to be a statement 39 Section 5 of the Peace and Good Behaviour Act 1982. -- 13 of 23 -- 13 by Mr Coleman of “is it violence that you want?”. The video recording of the incident reveals that what was actually said was: “Where do you want to go with this? What is it you are looking for with all of this tit for tat shit? What do you want? It is all going to head to some sort of violence or something? What do you want?'” (iv) It was submitted that those words cannot be construed as a threat by Mr Coleman to assault or do bodily harm to Mr Bicknell. Under cross- examination, Mr Bicknell disclaimed any suggestion that they were such a threat, instead insisting that they were threats of “inciting violence”, “inviting to fight”, “to come over and fight”. (v) Further, Mr Bicknell did not understand them to be a threat of the type alleged at the time. His initial thought (which is entirely consistent with the words used) was that Mr Coleman was accusing him of threatening violence, as his immediate response was: “We’re not threatening violence, you are threatening violence.” (vi) Mr Coleman’s response to such a suggestion was to deny it: “Mate, I’m twice your age. What are you talking about threatening violence? What are you on about?” (vii) No evidence was led at all as to the alleged threats. (viii) In all of those circumstances, the Court could not properly be satisfied that a threat as alleged in Mr Bicknell’s complaint was made on 9 November 2015. (ix) There was also no evidence that Mr Bicknell was in fear of Mr Coleman in the relevant sense (i.e., in fear that the alleged threat to assault will be carried into effect). His evidence on the subject was to the effect that he feared “more frivolous proceedings” or “further vexatious proceedings”. (x) The Court could not be and was not satisfied that the “matter of complaint” by Mr Bicknell had been made out, and his complaint was dismissed. (b) Mrs Bicknell’s complaint (i) The “matter of complaint” in respect of Mrs Bicknell is that on 4, 9 and 12 November 2015 at Birkdale: (A) Mr Coleman threatened to assault or to do any bodily injury to the complainant or to any person under the care or charge of the complainant, and that she was in fear of Mr Coleman; or (B) that the intentional conduct of Mr Coleman directed at her had caused her to fear that Mr Coleman will destroy or damage any property of hers. -- 14 of 23 -- 14 (ii) Mrs Bicknell gave no evidence that any conduct of Mr Coleman on 4 November 2015 caused her to fear that the defendant would destroy or damage her property. (iii) Mrs Bicknell gave no evidence of any threat to assault her or to do bodily harm to her on 9 November 2015, or that any conduct of Mr Coleman on that day, directed at her, caused her to fear that Mr Coleman would destroy or damage her property. For the first part of the confrontation, she was not even there. The rest of it involved her husband and the Colemans. She eventually conceded that no threat had been made. (iv) Mrs Bicknell gave no evidence of any threat to assault her or to do bodily harm to her on 12 November 2015, or that any conduct of Mr Coleman on that day, directed at her, caused her to fear that Mr Coleman would destroy or damage her property. The only “threat” she identifies is an alleged threat to cause their dog to bark and wake them nightly. When pressed under cross-examination, she was unable to identify any threat against her. (v) That left only the allegation of threats on 4 November 2015. They were: (A) an alleged comment by Mr Coleman that “this would end in violence”; and (B) an alleged comment by Mr Coleman that Mrs Coleman would be “dead in the water”. (vi) As to the first comment, Mr Coleman denies having made it. It was submitted that the Coleman’s evidence ought to be accepted. However, it was not necessary for the Court to go that far. Even if it did not accept Mr Coleman’s evidence, it must still be satisfied to the requisite standard that a threat was made. It was submitted that it could not reach that level of satisfaction. (vii) In any event, the words alleged were not capable of being construed as a threat by Mr Coleman to assault or do bodily injury to Mrs Bicknell. (viii) That leaves only the “dead in the water” allegation. Fortunately, what was said was caught on tape: “It's going to cost you a lot of dough and you silly, silly person, you’ll not stop until you stand there with egg all over your face in a courtroom and it’s just cost you thousands. And it’ll not stop until you’re dead in the water.’’ (ix) Those words are incapable of reasonably being construed as a threat to assault or cause bodily harm. At face value, they are clearly merely a boast by Mr Coleman that he will beat Mr and Mrs Bicknell in Court. (x) Clearly, at the time Mrs Bicknell did not think she had been threatened with assault or bodily harm, as she proceeded afterwards to engage in a conversation with Mr Coleman where she mocked him (“you’re so old”), and engaged in debate over the volume of their music: Mrs Bicknell: “Your music is louder than mine.” -- 15 of 23 -- 15 Mr Coleman: “Ok, I'll go and turn it off. That’s ok. That’s not an issue.” Mrs Bicknell: “I like my music and it’s no louder than a tv.” (xi) Such conduct also belied the claim that Mrs Bicknell is or was in fear of Mr Coleman. (xii) The Court was not satisfied that the “matter of complaint” by Mrs Bicknell has been made out, and her complaint was dismissed. (c) Matters applicable to both complaints (i) The Magistrates Court found that neither Mr Bicknell nor Mrs Bicknell was in fear of Mr Coleman, or alternatively that any fear held could not be reasonable because: (A) all of the alleged conduct occurred whilst the parties were neighbours. That ceased when the Bicknells moved in August 2016; (B) the events in issue occurred some 3 years ago (at the time of trial), and there is no allegation of further conduct of the type mentioned in section of the Peace and Good Behaviour Act 1982; (C) Mr Bicknell’s conduct in videotaping the defendant on the nights of 9 November 2015 and 12 November 2015 was not consistent with him being in fear of the defendant; and (D) the complainants agreed to the adjournment of these proceedings for some two years and resisted them being relisted when Mr Coleman sought to do so. That is conduct wholly inconsistent with ongoing fear requiring orders to be made in this proceeding. (ii) Added to those factors demonstrating a clear lack of any fear, was the conduct of Mr and Mrs Bicknell in appearing on an “A Current Affair” program denigrating the Colemans and the genuineness of these proceedings and their grievances generally, and Mrs Bicknell’s conduct in making prank calls to Mr Coleman, until the police made her stop. [38] Therefore, it was submitted by Mr Coleman Snr that these matters, along with the well-established animosity borne by the Bicknells to Mr Coleman as a result of their ongoing neighbourhood dispute, establish malice. Together, they lead to the irresistible inference that Mr and Mrs Bicknells’ Peace and Good Behaviour Act complaints were instituted maliciously, because of the animus they bore to Mr Coleman Snr, and not for the legitimate purpose for which they exist (i.e., to restrain a threatened breach of the peace by following through on a threat to assault etc.). Alternatively, if the Court does not accept that the complaints were instituted maliciously, at least by the time the Bicknells left their property they could not have had (and did not have) any fear of Mr Coleman, and the continuation of the proceedings after that date can only be explained by malice of the type alleged.40 40 See also [35] and [36] of the plaintiff’s outline of submissions viz absence of reasonable and probable cause. -- 16 of 23 -- 16 [39] Not unsurprisingly, the Bicknells maintain that Mr Coleman’s malicious prosecution claim has not been made out because of the following features: (a) it has not been established that the proceedings were initiated or continued without reasonable and probable cause. On the contrary, the evidence from Mr and Mrs Bicknell demonstrated that they made their complaints against Mr Coleman on the advice of police,41 and because they feared for their personal safety and the safety of their children.42 The recorded video evidence43 clearly showed the level of aggression coming from Mr Coleman and Mr Coleman Jr, and the surveillance of the Bicknells undoubtedly played a part in their fear; (b) the fact that the proceedings were delayed and then maintained even after the Bicknells moved away from Mr Coleman is not indicative of a lack of merit or lack of reasonable and probable cause because: (i) the period in which the proceedings were delayed was a period in which the police were investigating a complaint by the Bicknells which led to charges against Mr Coleman for stalking44 (although ultimately those charges do not appear to have resulted in any conviction - it was suggested that they were dismissed); (ii) whilst that investigation was on foot, and prior to the Bicknells having purchased a new home, the harassment from Mr Coleman ceased temporarily; (iii) once the investigation ceased and the Bicknells had a new permanent address, their evidence is that they once again had cause to fear for their safety; (c) the transcript of proceedings records that the Magistrate believed the proceedings had been brought in good faith and that the complainants both believed their case was meritorious.45 Those findings were made after the Magistrate had the benefit of hearing evidence from both Mr and Mrs Bicknell. It is relevant that the main confrontation that occurred on 12 November 2015 was inadvertently excluded from the complaint and therefore could not be considered as part of the Justices’ summons;46 (d) there is no evidence that the Bicknells were motivated by malice; and (e) Mr Coleman has not proved that he has suffered special injury or damage caused by proceedings initiated or continued without reasonable and probable cause. [40] It was also advanced that the Bicknells’ recording of some of these events cannot demonstrate provocation or deliberate or uninhibited confrontations. The Bicknells sought to record the actions of the Colemans for the purpose of seeking protection from the police because that was what they were advised to do.47 41 T2-17 from line 42. 42 T3-20 line 5. T2-27 line 25. 43 Eg Exhibit 6. 44 Tl-50 line 28-29. Mrs Bicknell gave this evidence at T3-47 lines 21-40. Mr Bicknell at T2-65 lines 24-27 and T2-66 lines 22-25. 45 Exhibit 2, pages 263-4, lines 40 – 46. That the Magistrate said the proceedings had been brought in good faith was conceded by Mr Coleman in cross-examination at Tl-50, lines 24-26. 46 Exhibit 2, pages 162 and 222. 47 T3-12, lines 40-41. -- 17 of 23 -- 17 [41] I have placed significant reliance upon the learned Magistrate’s findings regarding the Peace and Good Behaviour Act complaints levelled by the Bicknells against Mr Coleman. As is the situation in the current proceedings, parties in an adversary system have an entitlement to litigate, even if the actions taken from either side are regretfully far from ideal. That does not prove malice though. The learned Magistrate dismissed the Bicknells’ complaints after the Magistrate had the benefit of hearing evidence from both Mr and Mrs Bicknell, a decision which was made two years after the Bicknells sold their house and moved away. Her Honour also dismissed an application for costs made on behalf of Mr Coleman because her Honour considered the complaints were not mala fide. Her Honour found, among other things, that: “So I do consider that … the complaints were made in good faith and that … would really be the basis upon which I would be looking to make an award of costs.” [42] Based upon the finding and decision of the learned Magistrate, I am not persuaded, to the required standard, that the Bicknells’ complaints were initiated and continued without probable cause nor am I persuaded that they were brought with malice in the relevant sense. The learned Magistrate’s findings on good faith, in my view, militate against Mr Coleman’s allegations of malice and lack of reasonable and probable cause. I am also not inclined nor am I prepared to make a finding that the Bicknells did not honestly know, believe or conclude that there were reasonable grounds in making their Peace and Good Behaviour Act complaints. This part of Mr Coleman’s claim is therefore dismissed. The Bicknells’ Counterclaim Private Nuisance [43] In their counterclaim, it has been asserted on the Bicknells’ behalf that between December 2011 and mid-2013, Mr Coleman Snr and his wife (now deceased), made and caused to be made loud and unreasonable noise at the Coleman property. Instances have been pleaded including: (a) in August 2012: (i) making loud noises under the Bicknell children’s windows during the night and loud banging noises on other nights; (ii) playing “bin drums” outside one of the children’s window at 11.00pm; (b) in 2012 at approximately 11.00pm playing loud music for five seconds at five- minute intervals for about 30 minutes; (c) on or about 2 April 2013 visitors at the Coleman property blew their car horns repeatedly at approximately 11.30pm at the direction of the plaintiff; (d) on 14 April 2013 between 4.00pm and 6.00pm, playing loud music whilst continuously turning the volume up and down for a period of 15 minutes. [44] Regarding unreasonable noise, the Bicknells also asserted that Mr Coleman Jnr, too, was involved in that between about 2012 and December 2014, he and Mr Coleman Snr made, or caused to be made, loud and unreasonable noise at their property. Examples were given including: -- 18 of 23 -- 18 (a) in about October 2013 installing a wind chime on the Coleman property and causing it to ring whenever Mrs Bicknell was outside; (b) on or 20 November 2014 at 10.00pm, turning music up loudly and banging on a tin bin outside the Bicknell’s children’s bedroom window and yelling; (c) in 2015 and 2016, late in the evening, intentionally provoking the Bicknell’s dog to bark, including by making loud and unnecessary noise on the pontoon at the rear of the Coleman property and near the fence which divided the properties. [45] Due to the noise, the Bicknells were “disrupted from their sleep”, “were forced to regularly attend to their dog late at night, to calm the dog and cease it barking and to request [Mr Coleman Snr] cease the disturbance” and “the Bicknell children suffered distress and unease”. The said noise caused unreasonable and substantial interference with the Bicknell’s use and enjoyment of their property. [46] In addition to the noise, there were threats of intimidation and verbal abuse. Relevantly between December 2011 and mid-2013, Mr Coleman Snr and Jnr and the late Mrs Coleman threatened, verbally abused and sought to intimidate the Bicknell’s and their children. Examples were given including: (a) “yelling and swearing at the Bicknell children and their friends and at Mrs Bicknell”; (b) in 2012 the late Mrs Coleman threatened one of the Bicknell children and his friends when she said she would set her “vicious German Shepherd guard dogs on them if they came near her pontoon”; (c) Mr Coleman Snr and his late wife, staring from their balcony for extended periods into the Bicknell property and at the Bicknell children and their friends; (d) on or about 2 April 2013 when Mrs Bicknell asked the late Mrs Coleman to tell Mr Coleman Sr to stop watching the Bicknell children, the late Mrs Coleman made a rude hand gesture with her middle finger and yelled obscenities at Mrs Bicknell in front of her child; (e) making unreasonable, vexatious, unjustified complaints to police, to the Redland City Council and via Mr Coleman’s solicitors who sent the cease-and- desist letter of February 2014. [47] There were also instances of profanities being exchanged by the Colemans towards the Bicknells. Many other instances were given; some including on specified occasions. Because of the threats, abuse and intimidation a “significant amount of distress, anxiety and uneasiness” arose including: (a) the Bicknells had to make changes to their living arrangements within their house to protect their privacy, reduce contact with Mr Coleman Sr and mitigate any potential conflict including but not limited to: (i) installing a new washing line on the other side of the Bicknell property away from the Coleman property; (ii) moving the Bicknell children’s bedroom to a different room in the Bicknell property; -- 19 of 23 -- 19 (iii) relocating outdoor living areas to the opposite side of the property; (iv) locking their dog inside the house to avoid provocation; (v) avoiding the use of various areas of their property; (b) where the threats were made to Mrs Bicknell when she was alone at home, reporting the threats to police. [48] Despite evidence having been given by the Bicknells about some of these instances, I do not accept them sufficiently to find either of them have successfully proven the tort of private nuisance because: (a) Mrs Coleman, or her estate, is not a party to the proceedings. (b) Their reliability and credibility (like that of Mr Coleman Snr and Jnr) are not enough for me to act on their evidence alone without independent or objective evidence corroborating the allegations, consistent with the Briginshaw considerations. (c) Even if noise was created: (i) it would have been intermittent; (ii) it would have been isolated and not constant; (iii) I am not persuaded it was from Mr Coleman Snr or Mr Coleman Jnr; (iv) I have not been persuaded that such noise was material or unreasonable. (d) Mr and Mrs Bicknells never directly saw the Colemans intentionally provoking the Bicknells’ dog to bark. That was their assumption upon which I am not prepared to act. (e) Except for some poor language in verbal altercations (which the Colemans readily conceded in their evidence) with Mr and Mrs Bicknell across the fence, there is insufficient evidence which I am prepared to accept to support the allegation that between December 2011 and mid-2013 Mr Coleman Snr, Mr Coleman Jnr or Mrs Coleman threatened, verbally abused and sought to intimidate the Bicknells and the Bicknell children. In this regard, I accept as was highlighted on behalf of the Colemans that notably, when perhaps in a less planned situation, there was an exchange between Mrs Bicknell and Mr Coleman communicating across the fence whereby she called Mr Coleman a “pervert” and “paedophile”.48 To view poor language used by the Colemans taken out of context as threats, verbal abuse and intimidation, overstates matters. (f) The noise complaints to the police, and the wind chime complaints to the Redland City Council and through solicitors, were not unreasonable, vexatious and unjustified such to support a finding that the interference was unreasonable or material. (g) As for the assertion of the cutting of zip ties which held wire mesh to the Bicknell’s side of the dividing fence, even if it did occur by either Mr Coleman Snr or Jnr, there is no basis for me to attach tortious liability to one of them. 48 Exhibit 11. -- 20 of 23 -- 20 (h) As for the assertion of invasion of the Bicknells’ privacy by, firstly, removing trees between the relevant properties to get an “unobstructed view into the Bicknell’s yard and bedroom” and, secondly, by erecting surveillance cameras and filming and recording the Bicknells, I accept the argument advanced on behalf of the Colemans. That is, as to the first allegation, no trees were removed. There was some usual pruning carried out.49 As the footage taken of the boundary from the cameras at the side of the Coleman residence show, that pruning did not in any way ensure an “unobstructed view” into any part of the Bicknell property. Indeed, that footage showed the Bicknell property as essentially entirely screened by the trees. As to the second allegation, each party erected cameras on their property at the suggestion of the police50 (no doubt hoping to quell the dispute if people thought they were being filmed), with the Bicknells being the first in time51. Whilst the cameras on a pole in the Coleman backyard filmed parts of the Bicknell property, Mr Coleman was adamant that their purpose was to film the fence line52 (which was of course where the confrontations of 9 and 12 November 2015 occurred). It goes way too far to characterise the Colemans’ actions in all of those circumstances as an “invasion of privacy” especially where the Bicknells conceded their cameras did the same in respect of the Colemans backyard and pontoon.53 [49] Therefore, the tort of private nuisance brought by Mr and Mrs Bicknell has not been established. Trespass to Real and Personal Property [50] The Bicknells also made allegations of trespass to real and personal property against Mr Coleman and his son including allegations that: (a) on or about 21 October 2013, one of the Colemans entered the Bicknell property without permission and whilst on the property glued together the Bicknell’s wind chimes; (b) on or about 3 January 2014, one of the Colemans cut down the Bicknells’ wind chimes; (c) on 6 January 2014 one of the Colemans took the Bicknells’ wind chimes without permission; (d) on a number of occasions including at approximately 10.30pm on 5 October 2015, Mr Coleman Jr knocked over the bin or bins on the Bicknell property; (e) on 31 October and on 1 November 2015, one of the Bicknells or both threw or caused to be thrown eggs at the Bicknell property and their car because “the location of the eggs on the Bicknell property and the car was such that the eggs could only have been thrown from within the Coleman property”; (f) on 2 November 2015, one or both of the Colemans threw eggs at the Bicknell property at the Bicknell children’s bedroom because “the location of the eggs 49 T1-56, line 20. 50 As to the Colemans see T1-85, line 30; As to the Bicknells see T2-7, line 20. 51 T2-22, line 25. 52 T1-57, starting line 10. 53 T2-69, starting line 30. -- 21 of 23 -- 21 on the Bicknell children’s bedroom was such that the eggs could only have been thrown from within the Coleman property.” [51] Trespass to land is committed when a defendant directly invades the land in the possession of the plaintiff or otherwise directly infringes possession without lawful authority, justification or excuse. It may be committed intentionally or negligently.54 Any form of entry, however slight is trespass unless it falls within the scope of a licence (express or implied).55 [52] The Bicknells advanced the case that the eggs could only have been thrown from the Coleman property. However I am not persuaded.56 The area, especially where the car was parked, was openly accessible from the road. The egging incidents also occurred around Halloween, and evidence was given that the event attracted eggings57, at a time when Mr Coleman Snr said he was in hospital and the Colemans said their property was egged too. I am not satisfied the Colemans are responsible for any egg throwing which occurred to the Bicknells’ house or car because this aspect of the case is circumstantial, based only on the general circumstance of warring neighbours, seeking to make out a serious allegation of criminality in the face of the Colemans’ denials. There is simply insufficient evidence for the Court to find either of the Colemans did the things alleged. [53] On the other hand, as for the wind chimes being glued, cut down and then ultimately removed, the irresistible inference is that at least one of the Colemans was responsible for that demise, because, after all, the angst of the problem between the two families was due to the noise emission from the chimes and I accept that part of Mr Bicknell’s evidence that he received no complaints about the wind chime noise apart from the Colemans.58 However I am unable to find precisely who committed the trespass, given the pleadings and the manner in which the trial proceeded.59 There is no suggestion or evidence for me to act upon to take the view that it was in fact the Bicknells who glued, cut down or removed the wind chimes, as some conspiracy in order to damage the reputation of the Coleman men. However given that I am unable to positively find, to the requisite standard, who committed the acts, this cause of action is unable to be established. I accept, as was submitted on behalf of the Colemans, that even if one of them might have been involved, there is simply nothing to allow me to decide which if them is to be held liable. Should I be wrong about this, as for damage, on the evidence led at trial, I am not satisfied the Bicknells should be awarded any compensatory damages (let alone any exemplary or aggravated amounts) other than for a nominal amount for the three instances of trespass. The Bicknells gave no evidence of the cost of the wind chimes or any damage occasioned to them as a consequence of having had their neighbour enter their property on three, seemingly fleeting, occasions. Also, the Bicknells, in continuing to interact and deal with Mr Coleman Snr and Jnr after 3 January 2014 until the time they vacated their property in October 2016, do not instill upon me any feelings the Bicknells had because of insult, humiliation and the like (which is the primary purpose for any award for general compensatory damages). No other damages have been alluded to in the evidence. The claim for trespass, even if established, would result in a nominal 54 League Against Cruel Sports Ltd v Scott [1986] QB 240. 55 Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 CLR 584. 56 T2-55, starting line 35. 57 See generally T1-78 and T1-97. 58 T2-31. 59 It was pleaded that it was Mr Coleman Snr or alternatively Mr Coleman Jnr. -- 22 of 23 -- 22 award of $60. I base this award upon $10 for the first instance, $20 for the second instance (as a repeated instance) and $30 for the third instance (as a further repeated instance). Assault [54] It was also asserted by Mr and Mrs Bicknell that on the evening of 12 November 2015 the Colemans made physical and verbal threats and statements to Mr and Mrs Bicknell in order for them “to apprehend immediate physical violence” and the use of profound, aggressive and threatening language. Physical acts also included the Colemans leaning over the fence, pointing at the Bicknells “in a hard and aggressive manner”, making “threatening, provocative and intimidating movements which a reasonable person would interpret as pre-empting physical violence” and “shone torchlight in the Bicknells’ faces”. Mr Coleman Jr “tore off his t-shirt and used threatening body language”. The Bicknells reported this incident to police. It was not pleaded whether or not this evening occurred as it related to the alleged Peace and Good Behaviour Act complaint made by one or both of the Bicknells. I presume so. [55] The video of the incident was tendered at trial. I am satisfied no such assault occurred. I accept, as was highlighted by the Colemans, that on that occasion at least, the incident was brought on by the Bicknells deliberately to seek to gain evidence for a proceeding they had already decided to bring, that is the Peace and Good Behaviour Act complaints. Mr Bicknell engaged with the Colemans throughout. It started with the Bicknells shining lights on the Colemans walking to their pontoon60, and filming them. In that context, no physical assault is alleged, but it is said the Colemans by their actions caused the Bicknells to apprehend immediate physical violence. The allegation is probably little more than a rehash of the Bicknells’ Peace and Good Behaviour Act allegations of threats on 12 November 2015, which were correctly dismissed by the Magistrate. It is my view that there were no physical or verbal threats made by the Colemans. There was no objective apprehension of immediate physical violence by the Bicknells. The assault claim has not been established. Conclusion [56] As is apparent from the facts and evidence of this case, these proceedings should never have been brought to trial at all. It should never have escalated as it did. The plaintiff’s claim is dismissed. The defendants’ counterclaim is also dismissed. Subject to any contrary submissions from the parties, there will be no order as to costs. 60 T3-40, line 35. -- 23 of 23 --