Two men from Sydney’s eastern suburbs who tried to sue their neighbour after assault charges against them were dropped amid a tumultuous 20-year long dispute have had their case dismissed.
The pair, who live in Double Bay, took their neighbour to court for malicious prosecution after they were both charged with common assault over two incidents dating back to 2019.
The charges were later dropped by a magistrate when they faced court in 2020.
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The men have been in and out of court over disputes with their neighbour over the 20 years they have shared a boundary line.
“While they might have been living in close proximity to each other, there is no suggestion that their relationship could be described as in any way as ‘neighbourly’,” District Court Judge Robert Weber said.
“The relationship over the years was one involving regular arguments, sometimes involving the intervention of police, and the obtaining of apprehended violence orders.”
Air horn incidents
On an afternoon in November 2019, one of the men was watering his back garden, in breach of water restrictions at the time.
His neighbour then began to film him on her phone, scolding him and suggesting she was going to send the video to authorities as evidence of his breach of water restrictions.
An argument ensued over the back fence, during which the man picked up an air horn and discharged it twice in the woman’s direction.
At the time, she was standing in proximity to her neighbour and CCTV footage of the incident showed her flinching at the sound.
The court heard the man had purchased the air horn to use as a device to end arguments with the woman.
About 20 minutes after the first incident, the second man saw the woman using secateurs to cut a bamboo plant that grew on the men’s property, but whose leaves overhung into her backyard.
CCTV of the second incident shows the woman leaning over the fence to cut bamboo leaves on her neighbour’s property.
“While they might have been living in close proximity to each other, there is no suggestion that their relationship could be described as in any way as ‘neighbourly’.”
“This action obviously upset the second plaintiff who swore at the defendant and then reached for the air horn, pointed it at the defendant and discharged it, with the defendant in close proximity,” the judge said.
CCTV again showed the woman flinching at the sound.
The woman told the court, following the incidents, she experienced pain in her left ear.
She saw two doctors, one of whom reported on the “presence of ear trauma and physical symptoms consistent with exposure to loud sound.”
The woman reported the matter to police who attended her house that afternoon. She made a formal statement to police five days later.
The two men were subsequently charged with common assault.
They faced court about a year later, in November 2020, and the charges were dismissed.
The two men were then unsuccessful in obtaining a costs order against police.
Suing a neighbour
They then filed to sue their neighbour for malicious prosecution.
The men’s lawyer submitted that the neighbour instigated the prosecution and that she submitted false evidence to police about her ear pain.
The lawyer also argued she was selective in what CCTV she provided police.
But Judge Weber found the men failed to establish that the neighbour instituted or maintained the prosecution.
“Rather I find the prosecution was initiated and maintained in the conventional manner by Police, and in accordance with New South Wales Police prosecution policy, which policy requires prosecutions to be instituted only if they are in the public interest, and recognising that the resources available for the prosecutorial task are finite,” he said in handing down his decision last week.
“As to malice, while there may have been significant ill will on the part of the defendant towards the plaintiffs, I do not consider that she made the complaint to Police other than for the dominant purpose of the proper invocation of the criminal law.
“I agree with the submission of … counsel, who appeared for the defendant, who submitted that even if the plaintiffs and the defendant were unknown to each other, what objectively occurred on the afternoon in question justified the invocation of the criminal law.”
The case was dismissed and the men were ordered to pay their neighbour’s legal costs.
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