Campbell v Blackshaw

Case [2018] ACTSC 39

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Campbell v Blackshaw

Citation:

[2018] ACTSC 39

Hearing Dates:

21 November 2017, 21 February 2018

DecisionDate:

2 March 2018

Before:

Mossop J

Decision:

See [107]

Catchwords:

CIVIL LAW – APPEAL AND NEW TRIAL – Practice and procedure – leave to appeal – appeal against 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, 18(3)(a), 22, 82, 86, 86(3)

Common Boundaries Act 1981 (ACT), ss 2D, 4, 5, 8, 10, 10(2), 10(2)(b), 11, 11(3), 14, 22
Court Procedure Rules 2006 (ACT), r 5072
Dividing Fences Act 1951 (NSW), ss 8, 9
Magistrates Court Act 1930 (ACT), s 260
Nature Conservation Act 2014 (ACT)

Tree Protection Act 2005 (ACT)

Cases Cited:

Blackshaw & Evans v Campbell (Civil Dispute) [2016] ACAT 80

Blackshaw & Evans v Campbell (No 2) (Civil Dispute) [2016] ACAT 108
Campbell v Blackshaw & Evans (Appeal) [2017] ACAT 64
Campbell v Blackshaw & Evans (Appeal) [2017] ACAT 95
Hussain v Farhmand [2016] ACTSC 122
Abbey v Mack [2010] ACTSC 140; 244 FLR 324
Legal Practitioner of the Council of the Law Society of the ACT [2016] ACTCA 35; 311 FLR 108
Practitioner D3 v ACT Civil and Administrative Tribunal [2017] ACTCA 62

Robson v Leischke [2008] NSWLEC 152; 72 NSWLR 98

Parties:

Maryanne Campbell (Applicant)

Adam Blackshaw (First Respondent)

Robyn Evans (Second Respondent)

Representation:

Counsel

T Crispin (Applicant)

A Twigg (Respondents)

Solicitors

Peter Christensen Solicitor (Applicant)

Snedden Hall & Gallop Lawyers (Respondents)

File Numbers:

SCA 79 of 2017; SCA 86 of 2017

Decision under appeal: 

Court/Tribunal:              ACT Civil and Administrative Appeal Tribunal

Before:  Presidential Member M-T Daniel

Date of Decision:          30 August 2017

Case Title:  Campbell v Blackshaw & Evans (Appeal)

Citation: [2017] ACAT 64

Court/Tribunal:              ACT Civil and Administrative Appeal Tribunal

Before:  Presidential Member M-T Daniel

Date of Decision:          2 November 2017 (orders)
10 November 2017 (reasons)

Case Title:  Campbell v Blackshaw & Evans (Appeal)

Citation: [2017] ACAT 95

MOSSOP J:

Introduction

  1. The applicant (Ms Campbell) is the owner of a house on Mouat Street in Lyneham which adjoins a house owned by the respondents (Mr Blackshaw and Ms Evans).  There are nine cypress trees growing on the applicant’s property very close to or on the boundary between the two blocks.  The location of these trees with respect to the boundary between the two properties was surveyed in 2014.  On the resulting plan they are numbered 1 to 9, tree 1 being furthest into the block and tree 9 being closest to Mouat Street.

  1. Two sets of proceedings were brought in the ACAT by the respondents against the…

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Campbell v Blackshaw [2018] ACTSC 39
Case
[2018] ACTSC 39
Decision Date

CaseChat Overview and Summary

In the case of Campbell v Blackshaw, the parties, Campbell and Blackshaw, were neighbours engaged in a dispute concerning the construction of a common boundary fence. The underlying issue revolved around the removal of trees that were obstructing the fence. The ACT Civil and Administrative Tribunal (ACAT) had previously made orders for the replacement of the fence, but the dispute arose when the parties failed to cooperate in implementing these orders. The applicant, Campbell, sought leave to appeal the decision of the ACAT, specifically the Appeal Tribunal's order dated 2 November 2017. This appeal was filed out of time, and the applicant sought an extension to file the application for leave to appeal.

The legal issues before the court included whether the applicant had provided a proper explanation for the delay in filing the application for leave to appeal and whether the proposed grounds of appeal had sufficient merit to warrant an extension of time. The court had to consider the importance of time limits in legal proceedings and the potential consequences of granting an extension of time on the finality of disputes.

The court found that while there was some merit in one of the proposed grounds of appeal, it had to be weighed against the lack of any proper explanation for the delay in bringing the appeal. The court also considered the nature of the underlying dispute and the limited utility of an appeal given the existing rights of the respondents and the likely construction of a new boundary fence. Ultimately, the court concluded that it was not appropriate to extend the time in which to make the application for leave to appeal due to the importance of time limits in bringing finality to disputes and the absence of any proper explanation for the delay in seeking leave to appeal. The order of the Court was that the amended application for leave to appeal, including the application for an extension of time, dated 14 November 2017, was dismissed.

Orders

Orders of the court

See [107]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Conclusion: While there is some merit in one of the proposed grounds of appeal, that must be weighed against the lack of any proper explanation for the delay in bringing the appeal. Regard must also be had to the nature of the underlying dispute and the limited utility of an appeal having regard to the existing rights of the respondents and the likely construction of a new boundary fence. On balance, because of the importance of time limits provided upon applications for leave to appeal in order to bring finality to disputes and the absence of any proper explanation for the delay in seeking leave to appeal, I do not consider that it is appropriate to extend the time in which to make the application for leave to appeal. Therefore the order of the Court will be that the amended application for leave to appeal, including the application for an extension of time, dated 14 November 2017 is dismissed. The fence proceedings in this Court are an application for leave to appeal from a decision of the Appeal Tribunal of the ACAT: Campbell v Blackshaw & Evans (Appeal) [2017] ACAT 95. Orders were made by the Appeal Tribunal on 2 November 2017 and reasons were published on 10 November 2017. The applicant has, by application filed 4 December 2017, applied for leave to appeal. In the event that leave to appeal is granted, the grounds of the appeal to be advanced are those set out in a draft notice of appeal filed with the application for leave to appeal. Of those grounds, counsel for the applicant indicated that only three of them were to be pursued. Those grounds are: The first 63 paragraphs of the Appeal Tribunal’s decision outlined the history of the proceedings up to the point where the Appeal Tribunal could consider the grounds of appeal that were advanced. A brief summary of that history is as follows. In 2014 the Tribunal heard an application under s 8 of the Common Boundaries Act 1981 (ACT) (CB Act) for orders for replacement of the common boundary fence between the two properties. On 14 May 2014 the Tribunal made orders requiring the construction of a replacement fence. The 14 orders made described the nature of the fence to be constructed, the method of determining which contractor was to undertake any tree removal necessary and which contractor was to undertake the actual fencing work. Unfortunately those orders were drafted so as to require cooperation between the parties in identifying and engaging a fencing contractor. As a result of the respondents communicating to the Tribunal that there had been an apparent lack of cooperation in implementing the Tribunal’s orders, the matter was relisted before the Tribunal on 31 July 2014. On that day the Tribunal made further orders specifying by whom the fencing work was to be undertaken and the cost of that work. There has never been any appeal against the orders of the Tribunal made on 14 May 2014 and 31 July 2014. In these reasons they will be referred to as the “2014 orders”. The 2014 orders anticipated that advice would be received from the Conservator of Flora and Fauna (a statutory office established under the Nature Conservation Act 2014 (ACT) with duties under the Tree Protection Act 2005 (ACT)) and that the advice may affect the extent of tree damaging activity that could be carried out in the construction of the fence. In December 2014 the Conservator approved the felling or removal of tree 4. The balance of the trees (1-3, 5-9) were found not to be covered by the Tree Protection Act. As a result of the Conservator’s decision there was no impediment to the removal of any of the trees.

Ratio Decidendi

Legal Principle Established

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