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Client Interview and Advice Assignment (Final)

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Assignment: Client Interview and Advise
Part A (Demonstrated Problem Solving and Understanding)
Action in Private Nuisance (Paint Fumes and Noise) [Amber v Dustin]
Title to Sue
To bring an action Amber must have title to sue. To establish this, she must have had a
legally recognised possession of the land at the time of the interference.1 Mere licensees
cannot sue.1 Further, licence to sue is not dependent on ownership.2 It is not established what
Amber’s relationship with the land is, so this element cannot be confirmed, and more
questioning is needed, see below (1.5).
Interference with a Legally Recognized Right (1.2)
To bring an action, there must have been an interference with a legally recognised right
attached to the land. It is established that individuals have the right to enjoy land without
undue interference, which includes noise and smells/ fumes.1 Amber suffered noise and
fumes which are both legally recognised, therefore, this element is satisfied.
Damages (1.3)
Amber must establish the interference was substantial and unreasonable to sue. Amber
claimed she is losing sleep which has been established is a substantive interference even if
only one night’s sleep was lost.3 She further claims interference by fumes and noise, which
would likely be considered interferences with the ordinary comfort of human existence, thus,
also actionable.4 The court would consider if the interferences were unreasonable by applying
the ‘objective test.’ As no other neighbours of the defendant have complained however, it
seems likely the court would decide the interference was not unreasonable to the average
person. In addition, Amber, as a shift worker, is also ‘abnormally sensitive’ sleeping at an
unusual time. It is established that if the plaintiff is abnormally sensitive and a normal person
would not be bothered, the interference will not be actionable5. Further questioning would be
1
Hunter v Canary Wharf Ltd & London Docklands Development Corporation [1997] 2 WLR 684
Newington v Windeyer (1985) 3 NSWLR 555, 563-4
3
Munro v Southern Dairies Ltd Munro v Southern Dairies Ltd [1955] ALR 793
4
Walter v Selfe (1851) 64 ER 849 at 852
5
Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468
2
needed though to establish the exact nature of the interferences, see below (1.5). It is
possible, for example, the defendant had no other close neighbours who could be affected.
Finally, Amber must establish the damage was caused by the interference and was reasonably
foreseeable. Noise and fumes from a detailing shop would likely be considered due cause for
lost sleep, thus, she can likely claim the damage was caused by the interference. Further, as
Amber informed the defendant of her loss of sleep it can be established the loss was
reasonably foreseeable to said defendant after he was informed.
Defences, Remedies and Conclusion (1.4)
No defences are relevantly raised on the facts, however, note here the defence the plaintiff
‘came to the nuisance’ such as may be claimed – because this business has been operating for
15 years – does not stand.3
If the court ruled in Ambers favour they would likely award Amber compensatory damages
for the interference with/loss of use and enjoyment of her land. In addition, the court may put
in place an injunction on the defendant to stop him from continuing business either entirely or
during a certain time of the day.
If this matter was litigated it is not possible to say if Amber would be successful in her claim
without more information.
Further Legal Enquiry (1.5)
Firstly, the relationship of Amber with her land is not covered in the facts and must be
established. Mere licensees do not have title to sue, thus, if Amber is a licensee she cannot
sue Dustin.1 Secondly, the nature of the noise and fumes coming from the workshop needs to
be established. For example, the intensity of the fumes and noise and the duration and
frequency with which they occurred are all considered in the ‘reasonableness’ of the
interference and may change the outcome of the case.6
6
McKenzie v Powley [1916] SALR 1
Action in Trespass to Land (Amber entering Dustin’s land and leaving the box)
[Dustin v Amber]
Title to Sue (2.1)
To bring an action Dustin must have title to sue1. See above, Title to Sue (1.1). As Dustin is
the owner in exclusive possession this element is satisfied.
Direct and Unauthorised Interference with Land (2.2)
To sue, Dustin must establish the interference: was direct, was with his land and was
unauthorised. In this case, there are two actions in trespass, Amber being on the land and
amber leaving the box on the land. The trespass actions occurred as a direct result of ambers
actions, so they are both direct and thus this element is satisfied. Further, both actions are
direct interferences with Dustin’s land as both involve physical interference/ contact with the
land, so this element is satisfied.
In addition, Dustin must establish the interference was unauthorised. There was no express
licence to be on, or leave an item upon Dustin’s land, however, an implied licence may have
existed. There is an implied licence of consent to go onto another’s land and this is not only
limited to the path or driveway, but this can be revoked either expressly, by a lock, sign or
other means.7 Dustin did have a gate, although, it is unknown if it was locked or not and
further questioning is needed, see below (2.4). Regardless, once Dustin asked the plaintiff to
leave, any licence was revoked. The plaintiff must though be given a reasonable time to leave
the land.8 The time the plaintiff took to leave is not stated and needs to be established through
further questioning, see below (2.4). Because this fact is unknown this element regarding this
interference cannot be confirmed. Regarding the box, no implied or express consent existed,
thus, this interference was unauthorised, and this element is satisfied for that interference. For
each day of the days the box remained on the property a new action commenced9
Fault of the Defendant (2.3)
For Dustin to bring an action the plaintiff must have caused the trespasses either intentionally
or unintentionally and with negligence.10As the plaintiff intentionally committed the
trespasses this element is satisfied.
7
Halliday v Nevill (1984) 155 CLR 1, 7-8
Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605
9
Konskier v B Goodman Ltd [1928] 1 KB 421
10
McHale v Watson (1964) 111 CLR 384
8
Defences, Remedies and Conclusion (2.4)
There are no relevant defences raised on the facts other than that of an implied licence of
consent discussed above, see (2.2). If the court ruled in Dustin’s favour it would likely grant
compensatory damages of the value of the repair costs of the lawn.
If this matter was litigated it is likely Dustin would be successful in his claim of continued
trespass for the box. It is, however, not possible to say if the action for entry onto land would
be successful without additional information.
Further Legal Enquiry (2.5)
Firstly, was there any form of dissuasion against entering the property, I.e. a locked gate, sign
or previous request for Amber to stay off the property. If one of these elements was satisfied
her trespass would become unlawful which may change the outcome of the case. 11 Secondly,
how long exactly did Amber take to leave? The court will use this to consider if they left in a
‘reasonable’ time which will change the outcome of the case.8
Action in Trespass to Person [False Imprisonment] (Locking Amber
in the Caravan) [Amber v Dustin]
Direct Interference with Liberty (3.1)
For Amber to bring an action she must have been restrained as a direct result of the
defendant’s actions.12 As her restraint was caused directly by the defendant pushing closed
the door this element is satisfied.
Restraint in all Directions (3.2)
For Amber to bring an action she must have been restrained in all directions with no
reasonable means of escape.13 The facts of the case state the door was closed with amber
inside but not if it was locked or otherwise secured. Further questioning would be needed to
clarify this point, see below (3.5). Because this fact is unknown a conclusion on this element
cannot be made.
11
Halliday v Nevill (1984) 155 CLR 1, 7-8. See also TCN Channel Nine Pty Ltd v Anning
(2002) 54 NSWLR 333, 339
12
Myer Stores v Soo [1991] 2 VR 597
13
Bird v Jones (1845) 7 QB 742. See also Burton v Davies [1953] St R Qd 26, 30
Fault of the Defendant (3.3)
For Amber to bring an action the plaintiff must have caused the imprisonment either
intentionally or unintentionally and with negligence.10 As the plaintiff intentionally closed the
door this element is satisfied.
Defences, Remedies and Conclusion (3.4)
Dustin may potentially raise the defence of provocation,14 however, this defence requires the
defendant to act in the heat of the moment and not disproportionally to the provocation.15 As
more than two weeks had passed between the trespass to land/ destruction of grass and the
imprisonment, this would not be considered in the heat of the moment. Further, locking
someone in a caravan for 30 minutes would likely not be considered proportionate to the
provocation even though Dustin was very proud of his lawn as the test of disproportionality is
applied to a ‘reasonable person’.
If this matter was litigated it is not possible to say if Amber would be successful in her claim
without more information.
Further Legal Enquiry (3.5)
To best advise Dustin of his legal position one additional enquiry would have to be made.
Did you, in fact, lock Amber in the caravan or simply close the door without restraining it. If
Amber was not locked inside she was not restrained and thus, she cannot bring an action in
false imprisonment.16
Word Count Section A: 1483 Words
Part B (Legal Interviewing and Questioning)
1. Do you know if Amber leases, owns or has some other relationship with her land?
(Narrow)
2. Can you tell me about the work you do? For example, when do you normally work
from and till, how often do you work with paints, do you do any particularly noisy
jobs etc. (Open)
14
Criminal Code Act 1899 (Qld) s 269
Fontin v Katapodis (1962) 108 CLR 177, 182
16
Burton v Davies [1953] St R Qd 26, 30
15
3. Can you tell me about anything at your front gate that might dissuade people from
coming onto your land? For example, the gate is locked, or a sign is displayed.
(Narrow)
4. Have you ever expressly told Amber not to come onto your land? (Closed)
5. After you asked Amber to leave, how long exactly did she take to leave? (ValueLaden)
6. When you closed Amber in the caravan was the door locked/ could she leave if she
wanted? (Narrow)
Word Count Section B: 141 Words
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