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Written by Peter Carter

May 24, 2014

A long-running feud among neighbours in an idyllic waterfront hamlet has ended after four months in court, with one set of protagonists ordered to pay the legal costs of the other and those of local police, estimated to exceed $1 million.
In 2002, Jean Luc Clavel and Sarah Clavel – who moved to the waterside village of Mackerel Beach in 1994 – sued their former neighbours, Kim and John Savage after years of tit-for-tat hostility that began over complaints to local council concerning unauthorised building work.

After 15 weeks of testimony and argument, the NSW Supreme Court shut down all but four of their claims, ruling the others had no basis in law. That was in October 2010 when the court also dismissed Jean Luc’s claim against the police, for malicious prosecution over numerous police charges and AVOs sought against him by local residents and even police officers, all of which were eventually dismissed, dropped or mediated.

The Clavel’s’ four outstanding claims –  aiming a laser “from a gunsight” into their home; stones being thrown onto their roof; and insults flung during fenceline shouting matches – plus liability for legal costs, was the subject of separate submissions and a hearing in 2013. The final judgment was published in April.

Their claim was for a loss of past and future income arising from the “emotional distress” – anxiety and depression – that they alleged had been “intentionally inflicted” upon them by the Savages. Hostility between the pairs extended to complaints about the number of times one or other neighbour mowed or raked the grass, the number of times a dinghy was driven up on to the beach and a dispute over the escape of a pet rabbit.

The hunt for the rabbit triggered an analogy by His Honour between the protagonists of the Pittwater township – where ramshackle holiday shacks are interspersed among architectural masterpieces – and the inhabitants of the imaginary “wonderland” into which the bewildered Alice had fell. During the 2010 hearing, the Clavels rejected a $200k  settlement offer from NSW police plus $400k for costs.

Justice Rothman – who had also presided over the main event in 2010 –  pointedly observed “some controversies should never be litigated, regardless of the rights and wrongs of the particular parties. A neighbourhood dispute of this kind, no matter how serious, cannot justify the costs”.

The longevity of the dispute was indeed surprising given the Savages moved away from Mackerel Beach in 2001 followed soon after by the Clavels – who had migrated from France in 1985 –  with no contact whatsoever between them since.

Although the four remaining incidents involved deliberate acts of “wrongful conduct”, the court ultimately ruled that the plaintiffs fell short of proving the prerequisite intention or reckless indifference by the Savages, to cause physical or psychiatric harm. The claimants also failed to establish that the stone-throwing or laser spot was “a substantial contributing factor to any injury”.

Even though a laser sighting onto one’s chest at night may likely cause distress in a normal person, it was not, according to Judge Rothman, “reasonably likely to cause psychiatric harm”. In reality, there were dozens of incidents of which Mr and Mrs Clavel had complained of that were not actionable against anyone, least of all the Savages. Such episodes – assaults, arguments, an explosion, clashes with police, all recounted in exquisite detail during the nearly 4 month trial – would, ruled the judge, “have cumulatively been far more likely to cause any psychiatric damage” that the laser incident itself.

Their solicitor was spared the final agony of the impending debacle due to his “continuing unavailability” for the closing sittings and arguments. By then, both couples appeared before the court, unrepresented.

Clavel v Savage (No 2) [2014] NSWSC 463 23/04/2014, Rothman J – view decision

Categories: Personal Injury , Litigation & Law Practice

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