Malicious Complaints - The importance of technology and impartial investigative skills of Council has been highlighted in a neighbourhood nuisance dispute case.

In the recent decision of Merezhko v Diamandi & Anor [2019] AMCCI-18-3633, the Magistrates Court held that the numerous complaints brought by Ms Merezhko to the Council and the Police, amounted to a nuisance, and ordered compensation to the neighbours at the centre of Ms Merezhko’s complaints.

Facts

Ms Merezhko sought relief from excessive noise, which she claimed, emanated from the neighbouring property adjacent to her. The owners of that property, Mr and Mrs Diamandi, counterclaimed for damages for harassment, nuisance and loss of quiet enjoyment of their property.

A summary of the facts are as follows:

• Ms Merezhko lodged numerous complaints with the Council and the Police about the alleged conduct of the Diamandis.
• Ms Merezhko contacted the Police and alleged issues of domestic violence between the Diamandis, excessive noise and that Mr Diamandi had made specific threats to kill her. As a result of these allegations, the Police attended the Diamandi property on several occasions.
• Ms Merezhko made a number of complaints to the Council, namely that the Diamandis’ dogs barked, their bird squawked, children shouted loudly, Mr Diamandi played loud music and whistled while mowing his lawn. Ms Merezhko also claimed a security camera affixed to their property was aimed at her kitchen.
• While wearing a body camera, a Council investigator attended the Diamandis’ premises and adjoining properties over a number of months. The Council investigator made observations concerning noise and spoke to adjoining neighbours, this resulted in a large number of media files.
• After obtaining the general permission of the Diamandis, a Council inspector attended and placed a video recording device on the premises, without the specific knowledge of the Diamandis. This recording device obtained evidence over a number of days.

The Court Proceedings

In considering the case brought by Ms Merezhko, the Court found that her behaviour ‘in using the property she rents as a base from which to observe the Diamandis and harass them by making unfounded calls to Council and false reports to police to the extent she has’ amounted to an actionable nuisance. It was held that Ms Merezhko intended by her calls to cause police and Council to investigate her many complaints. Magistrate Milazzo stated that Ms Merezhko ‘must have intended that people attend the Diamandi’s property and intrusively investigate her complaints. She must have realised this would cause embarrassment and distress to them.’

During the course of its determination, the Court highlighted the importance of corroborated and independent evidence. It noted the Council was an independent body in this matter and due to the inspector’s attendances being recorded on video, through the use of a body camera device, the Court accepted without qualification the statements of fact contained in the Council file. Accordingly, where the material was in conflict with the evidence of Ms Merezhko, the Court rejected her evidence.

The success of the counter claim by the Diamandis turned on the evidence provided by the Council and the availability of damages in ‘nuisance’. Importantly, the Court followed legal precedents previously set down by the New South Wales Land and Environment Court, in Robson v Leischke [2008] NSWLEC 152.

Decision

The Court dismissed Ms Merezhko’s claims against the Diamandis entirely. In respect of the counterclaim brought by the Diamandis, Magistrate Milazzo ordered ‘damages in nuisance for Ms Merezhko’s harassment of them and for their mental distress and anxiety caused in consequence of that’. Further, Ms Merezhko was ordered to contribute to the erection of new fences and a security system installed by the Diamandis in response to her relentless harassment of them.

Take Home Messages

The findings of this case reinforce the important position council plays in neighbourhood disputes and dispute resolution. Through the use of available technology, council inspectors are able to provide a high quality of evidence in aid of the judicial process.

Interestingly, the Court highlighted it is unclear whether a tort of ‘harassment’ exists, although some material is suggestive of such a tort. The Court considered that the unfounded complaints of domestic abuse and threats to kill, do amount to defamatory statements made on occasion of qualified privilege, although this point was not raised during the counterclaim.

Norman Waterhouse are pleased to assist councils with investigation training and support for officers and inspectors. For more specific details on the information contained in this article or to enquire about how Norman Waterhouse can assist you in developing your investigation skills, please contact Paul Kelly on 8210 1248 or PKelly@normans.com.au; or Dale Mazzachi on 8210 1221 or DMazzachi@normans.com.au; or Viviana Paradiso on 8210 1292 or VParadiso@normans.com.au.