Corica v Smith - [2013] WASCA 226

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CORICA -v- SMITH [2013] WASCA 226

CORAM: NEWNES JA
MURPHY JA

HEARD: 6 SEPTEMBER 2013

DELIVERED : 27 SEPTEMBER 2013

FILE NO/S: CACV 114 of 2012

BETWEEN: SALVATORE CORICA
First Appellant
MARILYN KAYE CORICA
Second Appellant
AND
ELAINE ANN SMITH
First-named First Respondent
ALAN GEORGE SMITH
Second-named First Respondent
REGISTRAR OF TITLES
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MASTER SANDERSON
Citation  :CORICA -v- SMITH [2012] WASC 327
File No  :CIV 1824 of 2012

Catchwords:

Whether grounds of appeal have reasonable prospects of succeeding - Application to transfer from Magistrates Court - Whether appellants had arguable claims under s 122 of the Property Law Act 1969 (WA)

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA), s 39(2), s 39(4)
Property Law Act 1969 (WA), s 122(2), s 122(4), s 122(5A), s 123
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

First Appellant               :        In person
Second Appellant               :        In person
First-named First Respondent     :        Mr A M Prime
Second-named First Respondent         :        Mr A M Prime
Second Respondent     :        No appearance

Solicitors:

First Appellant     :        In person
Second Appellant               :        In person
First-named First Respondent     :        MDS Legal
Second-named First Respondent         :        MDS Legal
Second Respondent               :        No appearance

Case(s) referred to in judgment(s):

Corica v Smith [2012] WASC 327

REASONS OF THE COURT: This matter was listed before the court to hear an application by the first respondents (the respondents) to dismiss the appeal pursuant to r 43(2)(g) of the Supreme Court (Court of Appeal) Rules 2005 (WA) on the basis that none of the grounds of appeal has a reasonable prospect of succeeding.
The appeal arises out of a decision of Master Sanderson to dismiss an application by the appellants to transfer the case which they had commenced in the Magistrates Court to this court.
The broad background, as found by the master, is as follows. The appellants and the respondents are neighbours and their properties share a common boundary. The appellants, without consultation with the respondents, removed an existing fence between the properties. The respondents then put up what they described as 'temporary fencing'. They took that step because both parties had dogs. The respondents said that it was never intended that the present fence would be anything other than temporary. There is a high level of animosity between the appellants and the respondents, and the respondents had complained that the appellants had dumped a significant amount of unretained fill on their property. Despite the appellants' undertaking to the respondents to remove a significant amount of the excess fill and construct a proper fence and cut‑off wall between the two properties, nothing has been done. This led to the local council taking action against the appellants. The appellants were subsequently convicted and fined. The temporary fencing, in the meantime, has remained in situ. (See Corica v Smith [2012] WASC 327 [3] ‑ [4]. It is to be noted that in the fifth sentence of [3] of the master's reasons, there is a typographical error, and the reference to the 'The plaintiffs' should be a reference to 'The defendants'.)
The appellants contend that the new temporary fencing is erected on the appellants' side of the boundary. The appellants commenced proceedings in the Magistrates Court in March 2012 in relation to the erection of the temporary fencing. They also made allegations concerning trees and bushes growing near the boundary and that a pool fence was too close to the boundary. The relief they claimed was 'damages of the maximum the Magistrates Court allows - $75,000' (appellants' affidavit sworn 10 May 2012, page 8).
At an interlocutory stage in the Magistrates Court, the appellants contended that they needed 'to transfer [their] case to the Supreme Court under s 122 of the Property Law Act 1969 (WA) for the proper adjudication of the issue of encroachment' (appellant's affidavit sworn 10 May 2012, pages 13 ‑ 14).
On 11 May 2012, the appellants filed a document described as a 'notice of originating motion' which, on its face, was a review order pursuant to s 36 of the Magistrates Court Act2004 (WA). It also referred, on its face, to an application 'pursuant to s 122 of the Property Law Act 1969 (WA) (the Relief for Encroachment)'. It claimed that the 'Relief for Encroachment, pursuant to s 122 of the Property Law Act 1969 (WA) is within the jurisdiction of the Supreme Court of Western Australia; but such relief is not available to the [appellants] under s 6 of the Magistrates Court Act 2004 (WA) … (the Reason for Transfer)'. It also claimed damages and any other relief deemed fit by the court. The appellants' affidavits in support of the application, sworn 29 August 2012, alleged, in effect, that the fencing was erected by the respondents deliberately in order to encroach on the appellants' land.
The appellants' 'originating motion' came before McKechnie J who, on 26 June 2012, ordered that on the proper construction of the appellants' 'originating motion', the document should 'be treated as an application to transfer the whole Magistrates Court action … to the Supreme Court because of a lack of jurisdiction in the Magistrates Court to grant relief from forfeiture'. On a proper construction of McKechnie J's orders in the circumstances in which they were made, the reference to 'relief from forfeiture' is a reference to s 122 of the Property Law Act 1969 (WA) (PLA).
By s 39(2) of the Magistrates Court (Civil Proceedings) Act 2004 (WA), a party to a case in the Magistrates Court may apply to transfer the case in whole or in part to a superior court including the Supreme Court. Section 39(4) of the Magistrates Court (Civil Proceedings) Act provides:
The superior court may make such an order if it is satisfied that all or a part of the case is within its jurisdiction and -
(a)involves a claim by the claimant or another party, or an issue, that is outside the Magistrates Court's jurisdiction; or
(b)should be dealt with by the superior court because of its complexity or because of a question of law involved.
Master Sanderson dismissed the appellants' application to transfer the case to the Supreme Court apparently on the basis that the appellants had not shown that they had any arguable claims falling exclusively within the Supreme Court's jurisdiction.
The master found, in relation to s 122 of the PLA, that no relief was available to the appellants under s 122(2) of the PLA: see the master's reasons at [9].
By their grounds of appeal, the appellants allege, in effect, that the master erred in law in finding that there was no basis upon which the appellants could transfer their proceedings to the Supreme Court in that:
(a)the master was required to treat the application to transfer the action to the Supreme Court as based on a 'lack of jurisdiction in the Magistrates Court to grant relief from forfeiture';
(b)the appellants had claims under s 122 of the PLA which could only have been made in the Supreme Court;
(c)the appellants had claims under s 123 of the PLA which could only have been made in the Supreme Court; and
(d)the appellants had remedies available to them in the Supreme Court at common law and in equity for trespass and nuisance, including damages and an injunction.
In relation to subpar (a) in [11] above, the matter came before the master because McKechnie J had previously ordered, in effect, that the 'originating motion' be treated as an application to transfer on the basis that the Magistrates Court did not have jurisdiction to grant relief under s 122 of the PLA. Accordingly, this complaint must stand or fall with respect to the complaint in respect to subpar (b) of [11] above.
In relation to subpar (b) of [11] above, the appellants contend that the master misconstrued s 122 of the PLA and that on its proper construction they had arguable claims for relief pursuant to s 122(2), s 122(4) and s 122(5A) of the PLA.
The orders which, in the circumstances, might be made under s 122(2) of the PLA were:
(a)an order vesting in the respondents or some other person an estate or interest in part of the appellant's land;
(b)an order creating in favour of the respondents or some other person an easement over part of the appellants' land; or
(c)an order giving the respondents or some other person the right to retain possession of any part of the appellants' land.
Plainly the appellants were not seeking such orders. Section 122(4) and s 122(5A) of the PLA depend upon, respectively, an order 'under' s 122 or 'in accordance with' s 122. An order under or in accordance with s 122 is an order pursuant to s 122(2). Accordingly, s 122(4) and s 122(5A) of the PLA had and have no application. The master's conclusion that no relief was available to the appellants under s 122(2) of the PLA was correct. Whilst s 122(2) of the PLA does theoretically enable the owner of adjoining land to seek relief, the appellants were not seeking any relief of the kind provided for in s 122, and the master's reasons should be understood in that light. Accordingly, insofar as the grounds allege that the master erred in concluding that the appellants had not demonstrated any arguable claim for relief under s 122 of the PLA, the appellant's grounds have no reasonable prospect of success.
In relation to subpar (c) of [11] above, the appellants contend that the master should have considered whether the appellants had an arguable claim for relief under s 123 of the PLA and that had he turned his mind to that point, he would have concluded that the appellants did have such an arguable claim.
The master was dealing with a procedural application based on s 122 of the PLA. The transfer application was not made on the basis of a claim under s 123 of the PLA. Even taking into account that the appellants were litigants in person and making due allowance in that regard, the master was not bound to seek out arguments of alleged potential benefit to the appellants on issues which had not otherwise been fairly raised, and which, objectively, the respondents had not been required to consider and address. With respect to the (now) alleged s 123 claim, there is no arguable error in the way that the master approached the appellants' transfer application.
Even if the master should have considered s 123 of the PLA, there was no material upon which to form the view that s 123 had any arguable application. The relief under s 123 of the PLA depends upon the 'building' (which for present purposes it may be assumed, without deciding, would include the temporary fence) having been erected because of 'a mistake as to any boundary or as to the identity of the original piece of land'. There was no evidence of such a mistake in the appellants' claim in the Magistrates Court and the material before the master did not allege such a mistake. On the contrary, the appellants' case was to the effect that the encroachment was deliberate and intentional. Again, there is no reasonable prospect of success in this regard.
In relation to subpar (d) of [11] above, the appellants contend, in effect, that they had arguable claims for damages and an injunction which were only capable of being determined within the jurisdiction of the Supreme Court. In relation to the claim for damages, the Magistrates Court had jurisdiction to hear that claim: s 6(1)(a)(i) of the Magistrates Court (Civil Proceeding) Act. As to an injunction in equity, the appellants' claims in the Magistrates Court were only for damages; their application to the Supreme Court was not made on the basis that the appellants were seeking equitable relief; and McKechnie J's orders provided, in effect, that the application was to be determined on the basis that the Magistrates Court did not have jurisdiction to hear a claim for relief under s 122 of the PLA. It was reasonably to be assumed by the master that if the appellants were seeking an injunction to remove temporary fencing which, on their case, was on their own property, they would have issued a writ for that purpose (there being no procedural obstacle in that regard even if its practical necessity might not be obvious given the location of the fence) rather than apply to transfer the Magistrates Court claim on the basis that they were seeking relief under s 122 of the PLA. The observations in [17] above with respect to the alleged claim under s 123 of the PLA apply equally here. No arguable error is disclosed and there is no reasonable prospect of success on this basis either.
It follows that none of the grounds of appeal has any reasonable prospects of success.
In these circumstances, the appeal should be dismissed.