View case history...
|Court bid to stop NBN tower||Australia|
|Contamination level: Severe illness! Forced to abandon a home.|
|Author: PN||Created: 6 May 2015||Updated: 6 May 2015||Viewed: 4570 time(s)|
|A WOMAN has sought an injunction against the operation of an NBN tower just built near her home.||This case file has 1 entry and has been commented by 5 people|
|Injunction against the operation of an NBN tower just built near her home.||Created: 6 May 2015|
|A WOMAN has sought an injunction against the operation of an NBN tower just built near her home.
Jody Watkins, 40, of Garden Island Creek in southern Tasmania, has appeared in the Supreme Court in a bid for an interim injunction.
Her barrister Ray Broomhall said Ms Watkins had serious health issues including electromagnetic hypersensitivity.
Associate judge Stephen Holt said it would be able to be considered in the Supreme Court this Friday.
Jodie was diagnosed by three independent doctors and having EHS, one of them was the same doctor who gave evidence in the McDonald case. The Dr's also stated that if the tower is turned on it will cause serious health problems to Jodie and will also cause her home to become uninhabitable to her.
Further two electromagnetic experts conducted a joint survey in regards to Jodie's symptoms and exposure to EMR from a separate tower that was operational and emitting EMR in another area, it was noted in the report that she suffered detrimental health symptoms at the exposure to the EMR from that tower and concluded that the proposed NBN tower neighbouring her land if turned on would be a probable hazard to her health.
The law says that a person has the right to the use and enjoyment of their land without any interference from neighbours. NBN Co has designed and constructed a device with the clear intent to pollute its neighbours with EMR.
Section 3 of the Environmental Management and Pollution Control Act states that EMR is a pollutant and that the emission of a pollutant onto neighbouring land is a nuisance if it interferes with the use and enjoyment of land. The Local Government Act states at 201 that the General Manager of the Council (Huon Valley Council) may abate a nuisance if "there is immediate danger to any person or property".
Jodie made a complaint to the council only a few week ago requesting the Council issue an abatement notice against NBN Co. The Council refused to issue an abatement notice.
We will argue that the Council has a duty to protect Jodie from pollution (EMR) that interferes with her enjoyment of her land. Even though in this case the Council decided not to abate, they did so at their own peril, because the duty still exits, and Jodie may possibly include the Council in a suit for negligence if the tower is turned on if she is forced to leave her home and is injured by the EMR.
Not only does the Council have a duty to protect Jodie, but now because it is in legislation, the Court also has a duty to protect her. That is why I am seeking an injunction to permanently restrain NBN from turning on the tower or pulling the EMR trigger.
Clearly Jodie is in immediate danger, if I may use an analogy to explain: Imagine a neighbour is building a large machine gun, bolted securely to the ground, aimed directly at your home, it is in full view of you, you see it every day, then one day you see the neighbour load the gun with unlimited bullets and you are told by your neighbour that he/she intends to fire that gun at you and your house continuously, day in and day out, bombarding you for eternity with a hail of bullets, you become extremely anxious and fearful that the neighbour is actually going to pull the trigger. This is the analogy I am going to use in the Court in regards to what NBN Co have done in constructing the tower and their intention to emit EMR every day onto Jodie's land on a permanent basis.
The tort of nuisance is a powerful legal tool to use in Court. NBN Co have a duty to use their own property as not to injure their neighbour. That's the law. All Jodie has to do is prove that physical damage will occur to her land (contaminated with EMR to render uninhabitable), or injury to health such as headaches (EHS and Dr's report) etc which prevents her from enjoying the use of her land.
NBN Co are using the ARPANSA safety standard as the main reason why they feel they can turn the tower on. NBN Co and Malcolm Turnbull (Minister for Communications and head of NBN Co) have said that the tower's EMR emissions will comply with the APANSA standard. The ARPANSA standard states that EMR emissions are safe to the "general public" between 3kHz to 300GHz, and admits in its own standard that 'some people have abnormal sensitivities' to EMR. Jodie is a person that comes under that exception.
Jodie is being discriminated for her "abnormal sensitivity", she has been on a disabled pension since 1997 due to this health condition. The legislation that allows the ARPANSA safety guideline to be used actually has attached to it a "declaration" that "this legislation does not interfere with Australia's Human Rights obligations".
We will argue that the legislation goes against its misleading declaration as it does interfere with her human rights and that it discriminates against her because of her disability.
We will use that argument amongst many other to seek a permanent injunction to stop NBN co from pulling the trigger. We have filed a writ, and statement of claim. The writ enable us to sue and the court action will amount to a huge trial with a large amount of evidence, with witnesses and experts to be examined and cross examined, submissions made to the Court etc. The defence (NBN Co) and Jodie (the plaintiff) need time to prepare for trial, and then attend and argue at trial heard, until finally the Court publishes it decision. This matter could take months or years to conclude.
Whilst we are in the process for preparing for trial and I have applied for an interim (temporary) injunction, this interim injunction will stop NBN Co from pulling the trigger on a temporary basis until such time as the original trail is heard and determined by the Court, this interim injunction could be in place for months or years until either a permanent injunction is awarded or until Jodie loses the fight, the interim (temporary) injunction is lifted and NBN Co are allowed turn on the tower.
To grant an interim injunction the Court will insist that Jodie provides an undertaking that if she loses the trial that she will pay NBN Co's legal costs and economic loses ( ie lost revenue, contactors wages, internet carriers contractual loses etc) to cover the term of the interim injunction. The Court has indicated that it believes that Jodie does not have the assets or means to cover NBN Co's potential loses even if she gave an undertaking undertaking as NBN Co could potentially lose millions of dollars whist the injunction is in place.
To put it bluntly, Jodie has no option but to place her home up as a security and all that she owns, and even that will not be enough to satisfy NBN Co.
I will argue that NBN Co will need to provide real evidence of their potential loss which in the circumstance will be extremely hard for them to quantify loss in such a short time before we appear on Friday to have the interim injunction application heard.
Further NBN Co were fully aware of her health condition before they constructed the tower and even before they were granted planning approval by council. Yet they continued to build the tower and may I say completely at their own peril.
The beauty of a nuisance claim is that we are going to the court of equity, the Supreme Court has this function and can override legislation if it believes that legislation is inequitable and/or unconscionable. Telecommunication regulators such as ACMA in legislation do not have to give a financial undertaking if they place an injunction against the public or private individuals.
It would be unconscionable and unequitable to allow regulators to waive having to give an undertaking, but making Jodie do so. It would be inequitable that Jodie's finances compared to that of the Federal Government via NBN Co's unlimited resources.
It would be unconscionable to allow a person let alone a corporation to harm and injure a person merely because the victim does not have the means to pay an undertaking to stop them from harming her health.
Jodie also has been diagnosed with Chemical sensitivity, and she reacts badly to formaldehyde, which is found in most paints, glues, carpets, chipboard and laminates, laminex etc. She lived in the bush in a tent for 5 years away from society in a bid to protect her from chemicals and EMR. She finally purchased a 10 acre secluded block of land that was virtually free from EMR and she constructed a formaldehyde free home with her bare hands whilst on a disabled pension. She even grows her own chemical free food on the land. If the tower is turned on she will be forced to live back in the bush somewhere where their is no EMR emissions. She cant move into a normal house because of her chemical sensitivity and she will become homeless.
To force Jodie out of her home because she doesn't have the means to pay an undertaking if required would be an unconscionable act. The Court of equity hopefully will step in and override the legislative requirement of giving an undertaking as being completely unconscionable and grant that a monetary undertaking should be waived in Jodie's case.
That is what we are up against, we have a few hurdles, it will be a monumental battle, I am representing Jodie on a pro bono (no fee) basis, but I feel that in the interests of justice that Jodie gets relief on behalf of all EHS sufferers, it is the least I can do.
You and I can help by spreading the word, alerting everyone of Jodie's predicament, maybe some kind soul can pledge to the court to help add to the undertaking, such as an unwanted block of land or some asset of value, even just one dollar would help, write a letter addressed to me for the attention of the Supreme Court of Tasmania and in that letter note what items of value they undertake to give to NBN Co should Jodie fail in her bid.
These letters, and I hope many will flood in before Friday, will be invaluable as it may help in persuading the Court to waive the undertaking.
I hope this clarifies what Jodie is trying to do. If she wins this case, then it will set a precendent for all EHS suffers to be protected from NBN towers, smart meters and the like.
Finally a solution is at hand for all, lets grab this opportunity, and fight for Jodie and for justice.
|This entry has 5 comments. Click here to view comments. Click here to write a comment.|