Austin v Connaire

[1987] TASSC 39

Serial No 33/1987
List “A”

CITATION:            Barnett v Cleary and Vallance [1987] TASSC 39; A33/1987

PARTIES:  BARNETT
  v
  CLEARY
  VALLANCE

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 109/1986
DELIVERED ON:  25 June 1987
DELIVERED AT:  
HEARING DATE:  
JUDGMENT OF:  Neasey, Cosgrove and Cox JJ

CATCHWORDS:

REPRESENTATION:

Counsel:
           Appellant:  
           Respondent:  
Solicitors:
           Appellant:  
           Respondent:  

Judgment Number:  A33/1987
Number of paragraphs:  30

Serial No A33/1987
  File No FCA 109/1986

BARNETT v CLEARY and VALLANCE

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  NEASEY J
  COSGROVE J
  COX J
  25 June 1987

Order of the Court:
Appeal dismissed.

Serial No A33/1987

File No FCA 109/1986

BARNETT v CLEARY and VALLANCE

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  NEASEY J
  25 June 1987

1. This is an appeal by a plaintiff, who appeared in person at the trial and before this Court, against a jury's verdict which was in favour of the respondents The appellant sued the respondents, who were at the time his next door neighbours, for approximately $1,500 which he sought to recover against them under Part III of the Boundary Fences Act 1908.

1. The action was commenced in the Court of Requests, but was removed to the Supreme Court by virtue of the provisions of s13 (2) of the Local Courts Act 1896.

1. The appellant's pleadings were apparently drawn by himself, and are confused and difficult to follow, but the gist of the statement of claim and the various amendments of it seems to be as follows:

(1)He alleged that on or about 25 August 1983, he and the respondent Vallance, acting on behalf of herself and her co–defendant Cleary, reached an oral agreement whereby it was agreed that a boundary fence which was common between them and had fallen out of repair, should be cleared away and a new fence re–erected by agreed means, and that they should each pay half the cost. He said that the respondents failed to carry out their part of the agreement, whereupon he had the work done, and claimed half the cost of doing so, namely $1,542.92, against the respondents as damages for breach of contract.

(2)Further or alternatively, the appellant alleged that the respondent Cleary on a number of occasions between April 1983 and June 1983 negligently set fire to blackberry bushes growing on the said boundary fence, destroying and severely damaging portions thereof. Pursuant to ss24(2) and (3) of the Boundary Fences Act 1908, the appellant claimed $725, being half the cost of repairing and making sufficient the portions of the fence damaged and destroyed by fire.

(3)Further or alternatively to claim number 1, the appellant alleged that on or about 27 July 1983 he served on the respondents, pursuant to s23(1) of the Boundary Fences Act 1908, a notice requiring them to assist in making a sufficient fence. The respondents refused and neglected for a period exceeding 21 days after the service of such notice to provide such assistance, and the appellant thereupon, pursuant to s22 of the said Act, claimed against the respondents the full cost of replacing the 47% of the boundary fence damaged and destroyed by fire, namely $1,450; plus half the cost of the remaining 53% of the fence, in the sum of $817.92; making a total of $2,267.92.

1. The respondents:

(a)      Denied that any such agreement was made.

(b)Admitted that portion of the said fence was accidentally damaged by fire lit by the respondent Cleary, but claimed that the respondents thereupon immediately performed all necessary repairs to the damaged portions of the fence.

(c)Denied that the notice relied upon by the appellant in claim number (3) above was a valid notice pursuant to s23(1) of the Boundary Fences Act 1908.

1. The case was tried before a jury. The learned trial judge, Wright J, asked the jury to answer several questions, and they did so. The substance of the questions and the jury's answers was as follows.

1. Under "Ground 1 Agreement", the jury was asked to say whether the appellant and respondents reached the agreement referred to in the pleadings, to which they answered, "No".

1. Under "Ground 2 Section 23(1)", the jury was asked to say whether the appellant served a notice on the respondents requiring them to assist in repairing or making sufficient their common boundary fence; and to this they answered "No".

1. Under "Ground 3 Section 24(2) and (3)", the first question asked was whether portions of the common boundary fence were damaged or destroyed by fires lit by the respondents or either of them between April and June 1983. They answered "Yes". The next question was whether such damage or destruction resulted from the neglect of the respondents or either of them; and again the jury answered "Yes". The following question was whether the respondents neglected to repair or renew any such portions of the fence; and their answer was "No"

1. Shortly before the jury returned their verdict, they requested leave to ask a question of the trial judge. The question was, "We were wondering if we had to address ourselves just to the questions that you asked or if we could add anything to that". The learned trial judge replied that he could not see that there was anything other than the questions which would be relevant to the issues before the jury, and that they should confine themselves to those questions His Honour added that if there was any aspect of the evidence or any matter of a like nature upon which the jury wished him to refresh their memory, they should ask and he would do so. However, the jury foreman replied that the jury was now in a position to return a verdict, whereupon the verdict was taken in the form of answers to the questions as earlier set out.

1. The substance of the grounds of appeal in the notice lodged by the appellant is:

(1)The learned trial judge erred in directing the jury that the notice to fence must be in such a form as to require the adjoining owners to assist in repairing or making sufficient the fence or part thereof within the space of 21 days

(2)His Honour failed to direct the jury as to the meaning of the word "repair", in s24(2) of the Boundary Fences Act.

(3)The finding by the jury that the fire damaged portion of the boundary fence had been repaired by the respondents was against the weight of evidence.

(4)The trial judge failed to give a direction to the jury when the jury sought his assistance immediately before they returned their verdict.

1. I shall deal with each ground of appeal in turn.

Ground 1

1. Section 23(1) of the Boundary Fences Act 1908 reads as follows:

"23(1) The owner of any land separated from any adjoining land by a fence may serve a notice upon the owner of such adjoining land requiring him to assist in repairing or making sufficient such fence or part thereof; and if such owner refuses or neglects for the space of twenty–one days after the service of such notice to assist in repairing or making sufficient such fence or part thereof, the owner serving the notice may repair or make sufficient the fence or part thereof, and demand of and from the other owner half the cost of repairing or making sufficient the fence or part thereof, and may within twelve months recover the same in any court of competent jurisdiction."

1. The document upon which the appellant relied as constituting a notice to assist in repairing or making sufficient was a letter which he wrote to the respondents on 27 July 1983. This letter read:

   "A J  Barnett,
     PO Box 95
     Cygnet   7112

   27.7.83

   Mr R Cleary and Miss S Valance,
   Direen's Road,

   Lymington   7112

   I Alan Barnett hereby give notice in writing of my intention to have the boundary of our adjoining property fenced.

   The fence will be constructed by fencing contractors and will consist of Boundary Grade Ring Lock, split posts every 20 yards and straining posts where necessary, with one strand of barbed wire along the top.

   There will be no access gate between properties

   You will be liable for half all the costs incurred.

   A J Barnett"

1. The learned trial judge left to the jury as a question of fact whether the appellant had given to the respondents a notice in writing in such a form that it could be treated as a notice given pursuant to the provisions of s23(1). The actual form of the question asked of the jury has been set out.

1. In directing the jury upon that aspect, his Honour gave them a copy of s23(1), and then dealt with various aspects of the application of that provision. Then he said:

"But the central issue as I see it as it has been fought out in the case is this: And that is whether the notice, ... of the 27th July was an adequate notice for the purpose of setting in train the processes contemplated by Section 23. Now in the first place you will see that the notice does not employ the language of Section 23 at all. It does not say 'As our boundary fence is out of repair or is insufficient I give you notice requiring you to assist in putting it back in repair or making it sufficient'. It seems, but it is a matter for you, on the face of it to be a notice virtually incorporating a declaration of intention by Mr Barnett. He ends up saying ... 'You will be liable for half of all the costs incurred'. Now is that a notice requiring the assistance of the defendants? So that is the first issue and it is a fairly important issue that you will have to come to grips with. Was it a notice which in any way complied with Section 23? It does not have to comply with it verbatim but is it such a notice as could reasonably be seen by anyone looking at it that it was intended to invoke the provisions of Section 23? It does not mention Section 23 of the Act. And of course coupled with this is whether or not the defendants neglected or refused for the space of twenty–one days after the service of that notice to assist in repairing or making sufficient the fence."

1. His Honour then dealt with the meaning of the expression "refuse or neglect", and his direction on that matter is not challenged.

1. Then follows, however, the direction which is impugned. After referring to the 21 day period mentioned by s23(1), his Honour said:

"Now it seems to me ... that unless we are to add words to the Act which simply are not there, the obligation to assist can only really arise if the notice given is of such a kind as to require assistance within the twenty–one day period. I would ask this rhetorical question: How can anyone neglect to assist for the space of twenty–one days after the service of the notice – and I take this to mean twenty–one consecutive days immediately after the service of the notice – how can anyone neglect to assist in this sense unless the notice requires some immediate assistance or some assistance commencing on some day within that twenty–one day period? In other words, what I am saying is it seems to me very difficult that you can have a notice which complies with Section 23 and could be regarded as a legitimate foundation for a claim under that Section unless somewhere in that notice was a requirement that a particular kind of assistance was required within that twenty–one day period."

1. His Honour then made some observations about the kind of assistance to which s23 refers, and concluded this part of the direction by saying:

"But it is a matter for you I think as to whether or not you would regard P2 as being a notice within Section 23 of the Act in the sense that I have just been describing it to you."

1. It seems to me, with respect, that his Honour's direction was erroneous in law in two ways First, it was the trial judge's duty to interpret and expound the relevant statutory provision by, in this case, directing the jury as to the essential requirements of a notice capable of constituting a notice under s23(1) of the Act. (See generally, Craies on Statute Law, 7th ed, 13 – 15). Second, in my opinion it amounted to a misdirection in law to instruct the jury, as his Honour in substance did, that the absence of any reference in the letter to a period of 21 days was a matter, if not essential, very important to the question whether the letter constituted a valid notice under the subsection. I think that in this case, in order to direct the jury properly on questions of law, it was necessary to instruct them as to the minimum requirements needed in order to make a notice one capable of complying with the requirements of the provision. If his Honour had done so, such direction would, in my opinion, have been along the lines that, in order to be a valid notice, it only needed to specify the boundary fence in question, and to "require" the ad joining owners to assist in repairing or making sufficient the fence (as the case might be). I think his Honour was right in instructing the jury that no particular form of words was necessary.

1. It is not in my view essential to the validity of a notice given under s23(1) that it refer to a period of 21 days Of course, it would be sensible for anyone drawing up a notice under s23(1) to set out in the notice that it was intended to be given pursuant to that subsection of the Boundary Fences Act 1908, and to make further references to the terms of the subsection regarding the period of 21 days and the like; but failure to do so would not invalidate the notice as long as the simple essentials set out earlier were observed. Having given directions in law along those lines, it would then have been right to leave to the jury the question of whether a notice properly invoking the provisions of s23(1) had been given in accordance with its terms

1. But if the two matters to which I have referred constituted misdirections in law, it does not necessarily follow that the appeal must succeed on ground 1. Section 50 of the Supreme Court Civil Procedure Act 1932 provides that a new trial shall not be ordered on the ground that the trial judge misdirected himself or the jury (as the case may be), or that evidence was improperly received or rejected, or (in the case of a trial by jury) because the judge failed to direct the jury on any question or matter which he was not asked to direct them on, or because the verdict of the jury was not taken upon a question which the trial judge was not asked to leave to them, unless in the opinion of the Full Court some substantial wrong or miscarriage had been thereby occasioned. In the present instance, although the learned trial judge did in my respectful opinion misdirect the jury in the respects set out, no substantial wrong or miscarriage has been thereby occasioned because a proper and appropriate direction to the jury would have been that the letter written by the appellant to the respondents, dated 27 August 1983, and couched in the terms set out earlier, was not capable of constituting a notice which invoked the provisions of s23(1) of the Act. This is because it was not capable by any reasonable construction of being regarded as a notice to the respondents requiring them to assist in repairing or making sufficient the boundary fence in question. It was, as the learned trial judge suggested to the jury they might well find, a notice by the appellant to the respondents declaring his intention to have the adjoining boundary fenced in a certain way, and informing them that they would be liable for half of the cost incurred. By no reasonable construction of that letter could it be regarded as a notice requiring the recipients to assist in repairing or making sufficient the fence. Therefore, the learned trial judge's direction to the jury in relation to the 21 day period, and in respect of the purported notice generally, did not result in any wrong or miscarriage, since a correct and appropriate direction would have brought about the same result.

Ground 2

1. In arguing in support of ground 2, the appellant submitted that the learned trial Judge should have directed the jury as to the meaning of the word "repair" in s24(2), so as to direct them in effect that the word was equivalent in meaning to the expression. "make sufficient".

Section 24(2) provides as follows:

"(2) In case any fence is damaged or destroyed by fire or by the falling of any tree, or by stock, the owner through whose neglect, if any, such fire shall have originated or have caused damage or destruction to the fence, or such tree shall have fallen, or by whose stock the fence shall have been damaged or destroyed, shall be the party bound to repair any damage or to renew any fence so destroyed as aforesaid."

1. There is no substance in the contention that "repair" should be construed as being equivalent in meaning to "make sufficient". "A sufficient fence" is defined by s4 of the Act as meaning a fence which is ordinarily capable of resisting the trespass of cattle and sheep, except in certain circumstances set out in the definition. There is no reference to "make sufficient" in s24(2). The word "repair" therein refers to repair of damage done to a fence by fire, whereas the obligation in respect of a fence destroyed by fire, within the terms of the subsection, is to renew. The word "repair" is an ordinary English word, though it has a wide scope of possible meanings (see eg the Shorter Oxford English Dictionary, Vol 1, 1796). In the present context it means "to remedy, make up (loss, damage etc); to set right again" [ibid]. In simple terms, the obligation was to make good the damage to the fence done by the fire, and it was a question of fact for the jury whether that had been done. In directing the Jury about it, the learned trial judge referred in general terms to the obligation to repair the damage to the fence caused by fire, without giving any specific definition of the word repair. He finished by saying, "As I pointed out a short time ago, the primary obligation that that section (24(2)) creates is For the person who damages the fence to repair it and it is only if he does not repair it that the adjoining owner may repair it himself and then sue for the recovery of the costs incurred." I do not think there is any material risk that the jury understood and applied the word "repair" in any other than that which would be its ordinarily understood sense in the present context; namely, making good the damage.

Ground 3

1. It is not necessary to canvass at length the evidence given in respect of the question whether the damage done by fire was repaired. The trial was by a judge with a jury, and the principle is very firmly established that "the verdict ought not to be disturbed unless it was one which a jury, viewing the whole of the evidence reasonably, could not properly find" – Metropolitan Railway Co v Wright (1886) 11 App Cas 152 at 154, Middleton v Melbourne Tramway and Omnibus Co Ltd (1913) 16 CLR 572. In the latter case Isaacs J said this:

"It comes to this, then: Where there is a jury, it is the jury, and the jury alone, that have the jurisdiction to determine the issues of fact upon the evidence. The Court has so far control that it must see that the jury do their duty properly. Beyond that the Court cannot go. And if the jury have, in the opinion of the Court, found a verdict which reasonable men might have found upon the evidence before them, the Court is not at liberty to look further and set that verdict aside as being against the weight of evidence. If the finding is unreasonable, in the sense that the jury could not have really performed the judicial duty cast upon them, but must have been guided or moved by considerations other than the value and weight to be given to the evidence – considerations that ought not to have been entertained, and which vitiate the finding, because, as Lord Herschell phrases it in Jones v Spencer 77 LT, 536, at p538, it cannot be said 'the jury have found their verdict upon the evidence,' – then there is, as that learned Lord and also Lord Shand there both say, 'a miscarriage,' and the finding is, in the requisite–sense, 'against the weight of evidence,' and the verdict may be set aside. The preponderance of the evidence itself may, as Lord Selborne points out, be such as to establish this absolute unreasonableness – a term for which (as Lord Coleridge, in Dublin, Wicklow, and Wexford Railway Co v Slattery 3 AC, 1155 at 1197, pointed out) there is no definite standard; but, except for the purpose of ascertaining whether that test is established, which every Court must determine for itself, the Court has nothing to do with the weight of the evidence – that is for the jury."

1. The relevant sections of the Supreme Court Civil Procedure Act 1932 in this State, ss39(5) and 47, allow for and contemplate the application of this principle – Hydro Electric Commission of Tasmania v Conley, Full Court, TASSC 81/1965, and Hydro Electric Commission of Tasmania v Newland, Full Court, TASSC 94/1965.

1. When one examines the evidence in the present case in that light, it is clear that there was ample material before the jury upon which they might reasonably have reached the view that the damage caused to the fence by fire had been repaired by the respondents Such material may be found in the evidence of Sue Leslie, Ray Cohen, and the first respondent.

Ground 4

1. The appellant's complaint here is that the learned trial judge did not respond to the jury's question, set out above, whether there was any other matter to which they should address their minds except the questions which he had asked them to answer. His Honour quite properly told the jury that there was not. It has not been suggested that the questions the jury were asked to answer failed in any way adequately to cover the issues which were required to be resolved in order to determine the case. Accordingly, there is no substance in this ground.

1. I would dismiss the appeal.

Serial No A33/1987

File No FCA 109/1986

BARNETT v CLEARY and VALLANCE

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  COSGROVE J
  25 June 1987

1. I agree with the order proposed by Neasey J and with his reasons for so doing.

Serial No A33/1987

File No FCA 109/1986

BARNETT v CLEARY and VALLANCE

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  COX J
  25 June 1987

1. I have had the advantage of reading the Reasons for Judgment of Neasey J. I agree with them and with the orders he proposes