From: Neil
Foster <neil.foster@newcastle.edu.au>
Sent: Wednesday
17 December 2025 04:35
To: obligations@uwo.ca
Subject: ODG: HCA
on private nuisance- Hunt Leather
Dear Colleagues;
In a
5-member decision handed down today in Hunt
Leather Pty Ltd v Transport for NSW [2025] HCA 53 (17 December
2025) https://www.hcourt.gov.au/cases-and-judgments/judgments/judgments-1998-current/hunt-leather-pty-ltd-v-transport-nsw the
High Court of Australia by majority affirmed what many will see to be a
new compound test for the law of private nuisance, adopting substantially the
test outlined by the Lord Leggatt for the majority in Fearn v Board of
Trustees of the Tate Gallery [2024] AC 1.
The case involved nuisance in the form of interference with
businesses along the route of a new construction of a light rail along the main
street of the Sydney CBD and along another key arterial road, Anzac Parade. The
two lead plaintiffs were part of a class action joined by a number of
businesses. The trial judge had held that the construction was a substantial
interference with the enjoyment of the land of the plaintiffs, and that the
interference became 'unreasonable' at a point where it went on far longer than
originally announced. The NSW Court of Appeal overturned this decision after
reviewing a number of factual findings by the judge, and holding that the
plaintiffs had not shown what other measures could have been taken to reduce
the impact of the project.
This is a lengthy judgment (121 pages on my Word version) but I
will aim to summarise the main findings briefly. There is much of interest and
of course many list members are cited.
The main division between the members of the court is the
appropriate test to be used to determine whether a substantial interference
with enjoyment of land is actionable. The majority (Gordon & Edelman JJ,
supported on most points by Beech-Jones J) hold that the test is as follows:
[57]...In
broad terms, the principles of private nuisance balance a plaintiff's right to
land with the liberties of a defendant to use other land. This balance is
struck by imposing liability for a substantial
interference with a plaintiff's right where
the interference is with ordinary enjoyment of land if: (i) a defendant
uses their land for a purpose that is not
common and ordinary; or (ii)
the defendant's use of land does not reasonably
minimise the extent of the substantial interference with
the plaintiff's ordinary enjoyment of land. In either circumstance, a
defendant will have a defence of statutory authority if Parliament has
authorised the defendant's uncommon use of land or failure reasonably to
minimise the substantial interference, as the case may be. (Emphasis
added)
This
test, with its emphasis on the need to find that the use of the defendant's
land is not 'common and ordinary', follows the majority decision in Fearn, and is drawn from comments of Baron
Bramwell in Bamford v Turnley (1862) 3
B & S 66 [122 ER 27]. However, the dissenters on this issue
(Gageler CJ and Jagot J, in separate judgements) say that this stress on
'common and ordinary' use is unhelpful; Gageler CJ frames the test as follows:
[24] a
substantial interference with
use and enjoyment of land will be actionable as a private nuisance
if, but only if, such interference with the
plaintiff's use and enjoyment of land as is attributable to the defendant
is demonstrated by the plaintiff to be unreasonable.
Their
Honours cite a number of key prior High Court decisions where this was the test
that was adopted. They say there is no reason to change the law on this point.
Gageler CJ at [16]:
"The common law in Australia is the common law of
Australia." The significance of Fearn for the potential
development of the common law of Australia can rise no higher than the
persuasive value of its reasoning.
Jagot J at [216]:
Accordingly, Gartner v Kidman and Elston v Dore are
authoritative and binding statements of the law in Australia that private
nuisance requires a substantial and unreasonable interference with the use
and amenity of land to
be proved by a plaintiff, not a mere substantial interference if the defendant's use can be
characterised as other than common and ordinary in the locality. The Court of
Appeal was correct to reject the arguments of the representative plaintiffs to
the latter effect.
(It
is perhaps worth clarifying at this point that one of the other key issues
in Fearn (the question whether the law of nuisance protects a right
not to be 'overlooked') was not at issue in this decision and so we do not know
yet whether the High Court will accept that aspect of the decision. I have
previously argued that it should not.)
The different members of the court then considered the issues in
the case using the relevant framework that they had proposed. For Gordon &
Edelman JJ, it was agreed that the construction of a new light rail was not a
'common and ordinary' use of the land- see [133]. Hence, on their analysis,
nuisance had been committed unless statutory authority could be proven- see
[135]. Even if it were necessary to go to the second limb of their preferred
test, it was up to Transport for NSW (TfNSW) to show that they had done what
was reasonable to minimise the impact, and this they had not done- [137].
For
Beech-Jones J, who at [260] noted that he also adopted the two part test
preferred by Gordon & Edelman JJ, the construction of the light was in fact
a 'common and ordinary' use of land in the middle of the CBD, but he agreed
that it was not shown that the construction works were 'conveniently done'-
see [261].
Gageler
CJ, applying the 'reasonable' criterion, held at [50] that there was no reason
to interfere with the trial judge's decision that landholders were
'subjected to interferences which they could not reasonably be expected
to bear in the execution of that construction'. Jagot J agreed:
[221]...the severity
of the interferences with the use and amenity of the representative plaintiffs' premises found
by the primary judge amply supports the conclusion that the interferences were objectively substantial and
unreasonable.
I
have not delved into many points discussed, but to briefly conclude: all
members of the court agreed that the statutory authority to plan the
construction of the light rail, and to carry out the works, did not inevitably
mean that nuisance would be committed, so did not amount to a defence here. It
was not possible for TfNSW to rely on the defence provided by s 43A of the Civil
Liability Act 2002: it was arguable that s 43A did not apply to
nuisance claims, but in any event it seemed that the action relied on as a
wrong, authorising the construction, was not a 'special statutory power' of the
sort which engaged the operation of s 43A- see eg Gageler CJ at [56]. And the
plaintiffs could not claim as part of their costs of the action, the costs of
entering into a litigation funding agreement.
This
last point was a general one which one could say was a remoteness issue,
or 'scope of liability'. The plaintiffs argued that they could not have made
the claim defending their rights unless they agree to pay a 40% commission to
the litigation funder, and hence their award of damages should include this
amount. Gordon & Edelman JJ (agreed with by all the other members of the
court) rejected the claim:
[169]
Even if all the submissions above by Hunt Leather and
Ancio Investments were accepted, the funding
commission still would not be recoverable as damages
because any such loss was not 'the kind of
damage ... which [TfNSW was] under a duty to prevent'. The tort
of private nuisance, as a tort against land, permits
recovery of damages which reflect the decreased value of land and any losses that
are 'consequential upon the
injury to the land'. The 40% commission is neither an injury
to land nor a loss that is consequential upon the injury to land. As the
Court of Appeal rightly said, the funding commission is not 'a consequence of any
actionable nuisance'.
Regards
Neil
NEIL FOSTER
Associate Professor, School
of Law and Justice
College of Human and Social Futures,
The University of Newcastle
Hunter St & Auckland St, Newcastle NSW 2300
T: +61 2 49217430
E: neil.foster@newcastle.edu.au
Further details: http://www.newcastle.edu.au/profile/neil-foster
My publications: http://ssrn.com/author=504828
Blog: https://lawandreligionaustralia.blog
I
acknowledge the Traditional Custodians of the land in which the University
resides and pay my respect to Elders past and present.
I extend this acknowledgement to the Worimi and Awabakal people of the land
in which the Newcastle City campus resides and which I work.
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