Campbell v Blackshaw

[2019] ACTCA 1

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Campbell v Blackshaw

Citation:

[2019] ACTCA 1

Hearing Date:

17 November 2018

DecisionDate:

14 February 2019

Before:

Burns, Elkaim and Loukas-Karlsson JJ

Decision:

Each appeal is dismissed.

Catchwords:

CIVIL LAW – APPEAL AND NEW TRIAL – Practice and procedure – leave to appeal – appeal against decision refusing to grant leave to appeal decision of ACT Civil and Administrative Tribunal – dispute between neighbours – nuisance caused by trees – application for leave to appeal out of time – failure to properly explain delay – limited merit in grounds of appeal – extension of time to appeal not granted – common boundary dispute – consideration of proposed grounds of appeal – leave to appeal not granted

Legislation Cited:

ACT Civil and Administrative Tribunal Act 2008 (ACT) ss 15, 18, 22, 82, 86
Common Boundaries Act 1981 (ACT) ss 4, 5, 10, 11
Court Procedures Rules 2006 (ACT) s 5072
Magistrates Court Act 1930 (ACT) ss 257, 258, 260,

Cases Cited:

Campbell v Blackshaw [2018] ACTSC 39
Capital Property Projects (ACT) Pty Ltd v Australian Capital Territory Planning & Land Authority [2008] ACTCA 9; 2 ACTLR 44
Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTCA 56
Department of Premier and Cabinet v Hulls [1999] VSCA 117; 3 VR 331
House v The King [1936] HCA 40; 55 CLR 499
Myers v Medical Practitioners’ Board of Victoria [2007] VSCA 163
Practitioner D3 v ACT Civil and Administrative Tribunal [2017] ACTCA 62
R v Meyboom [2012] ACTCA 2
Wiser v Havelock Housing Association Inc [2014] ACTSC 138
Young and Hammond (Civil Dispute) [2012] ACAT 30

Parties:

Maryanne Campbell (Appellant)

Adam Blackshaw (First Respondent)

Robyn Evans (Second Respondent)

Representation:

Counsel

T Crispin (Appellant)

A Twigg (Respondents)

Solicitors

Peter B Christensen, Solicitor (Appellant)

Snedden Hall & Gallop (Respondents)

File Number(s):

ACTCA 17 of 2018; 18 of 2018

Decision under appeal: 

Court/Tribunal:             ACT Supreme Court

Before:  Mossop J

Date of Decision:         2 March 2018

Case Title:  Campbell v Blackshaw

Citation: [2018] ACTSC 39

THE COURT

Introduction

1. This matter comprises two separate appeals from one decision of Mossop J on 2 March 2018. On that day, Mossop J made the following orders:

(a)The application for leave to appeal dated 4 December 2017 is dismissed.

(b)The applicant is to pay the respondents’ costs of the proceedings.

(c)Any application for a different costs order, including any fixed sum costs order, must be filed and served within 14 days.

1. We will deal with the appeals separately under the headings of “Nuisance” and “Fence”.

Nuisance

1. The first appeal relates to nine trees running down the fence line between the properties occupied by the parties.

1. The grounds of appeal relating to the leave to appeal decision are as follows:

   1. The learned Justice fell into error by failing to give adequate weight to the public interest in clarifying whether section 260 of the Magistrates Court Act confers jurisdiction to issue…