Galea v Ruffini (No 2)
[2011] QMC 21
•8 February 2011
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Galea v Ruffini (No 2) [2011] QMC 21
PARTIES:
VICTOR GALEA
(plaintiff)
KATHRYN GALEA
(plaintiff)
v
PAUL RUFFINI
(defendant)
VIVIENEE RUFFINI
(defendant)
FILE NO/S:
M654/09
DIVISION:
Magistrates Courts
PROCEEDING:
Application to strike out Originating Application
ORIGINATING COURT:
Magistrates Court at Toowoomba
DELIVERED ON:
8 February 2011
DELIVERED AT:
Toowoomba
HEARING DATE:
2 December 2010
MAGISTRATE:
Stjernqvist H
ORDER:
Substantive Application incorrectly started. Respondent/Plaintiff to restart application for Order to Fence by complaint.
CATCHWORDS:
REAL PROPERTY – FENCING OR BOUNDARIES OF LAND – PRACTICE AND PROCEDURE – whether Originating Application can commence proceeding
Dividing Fences Act 1953 (Qld), s 18
Uniform Civil Proceedings Rules 1999 (Qld), r 26
COUNSEL:
S Trewavas (sol) for plaintiffs
Hall for defendants
SOLICITORS:
Creevey Russell Lawyers for plaintiffs
CLO Lawyers for defendants
Chronology
7 October 2009 Plaintiff filed proposed application without oral hearing.
19 November 2009 First mention of application. Adjourned to Registry.
29 April 2010 Second mention of application. Adjourned.
21 May 2010 Mediation – outcome unknown.
3 June 2010 Third mention – adjourned.
1 July 2010 Fourth mention – adjourned to Registry.
26 November 2010 Defendant filed application seeking an order that the Plaintiff’s application be struck out and other alternative orders.
2 December 2010 Defendant’s application heard.
Plaintiff’s Initiating Application.
The origination application sought the following orders:
1. The Plaintiff seeks that an Order to Fence be made by this Honourable court with respect to a fence to be erected between the property situated at [address] and the property situated [address].
2. The Defendants pay the First Plaintiff’s costs of the application.
3. The First Plaintiff proposes that this application be decided without an oral hearing. An order in terms of the accompanying draft is sought. The material and submissions in support of the application are provided.
Defendant’s Application.
The applicant/defendant seeks the following orders;
1. That the Plaintiffs Application herein be struck out for want of jurisdiction;
2. Further or in the alternative, that the Plaintiffs’ Application be struck out pursuant to Rule 16 Uniform Civil Proceedings Rules 1999 (UCPR);
3. Further or in the alternative, that the Plaintiff’s Application herein be struck out pursuant to Rule 26(8) Uniform Civil Proceedings Rules 1999 (UCPR);
4. Further or in the alternative, that the Plaintiff’s Application be dismissed and the Defendant be awarded judgment against the Plaintiff pursuant to Rule 293 UCPR.
5. Further or in the alternative that the Plaintiff’s Application be struck out as an abuse of process;
6. That the Plaintiff pay the costs of the Defendant of an incidental to this application and the proceedings on an indemnity basis;
7. Further or in the alternative that the Plaintiffs pay the defendants costs of and incidental to this application and the proceedings;
8. Such further or other orders as the court deems fit.
The Dividing Fences Act is the relevant legislation and provides for how an application is to be commenced. The application was commenced prior to the commencement of QCAT – I have reproduced both provisions for completeness.
The Dividing Fences Act 1953 - Part 4 General (Reprint 2B effective 1 August 2004), relevantly provides:
Section 18 Jurisdiction of and proceedings in Magistrates Courts or Small Claims Tribunals
(1) An application under section 9(1) or section 11(1) for an order to fence, or under section 16(2A)(d) or 16(3) for an order to fence or, as the case may be, repair may be made to a Magistrates Court held at a place appointed for holding Magistrates Courts within any Magistrates Courts district within or within 35km of the boundary of which the dividing fence or any part of the dividing fence in question is or is proposed to be constructed or, except in relation to section 11, may be made to a Small Claims Tribunal in accordance with the Small Claims Tribunals Act 1973 and that Court or Small Claims Tribunal shall have jurisdiction to hear and determine that application.
(2) An application for an order under section 11(3) or, where an order to repair with respect to any dividing fence is made under this Act, an application as required by this Act for the consent of the Magistrates Court to the service under this Act with respect to that fence of a notice to fence, shall be made to a Magistrates Court held at the place at which that order to fence, or, as the case may be, repair was made or, if the appointment of that place as a place for holding Magistrates Courts is meanwhile cancelled, to a Magistrates Court held at a place appointed for holding Magistrates Courts within any Magistrates Courts district within or within 35km of the boundary of which the dividing fence or any part of the dividing fence in question is situated, or, except in relation to section 11, shall be made to a Small Claims Tribunal in accordance with the Small Claims Tribunals Act 1973 and that Court or Small Claims Tribunal shall have jurisdiction to hear and determine that application.
(3) In or for the purpose of any proceedings in a Magistrates Court under this Act (not being proceedings for the recovery of any moneys which any person is in pursuance of this Act required or liable to pay);
(a) the application shall be commenced by complaint made by the applicant in person or by the applicant’s counsel or solicitor or other person authorised in that behalf to a justice of the peace who, in every case other than an application under section 11(1), shall issue his or her summons directed to the other party to those proceedings; (my emphasis).
(b) a Magistrates Court having jurisdiction as in subsections (1) and (2) provided;
(i) shall, subject to this Act, have and may exercise all the ordinary powers of Magistrates Court;
(ii) may dismiss the application before it as justice may require or make such order thereon as is prescribed;
(iii) may take the best means of informing itself upon the merits of the case;
(iv) may, in the case of the making of any order or the dismissing of any application under this Act, in its discretion order the payment by such parties of such costs as to it seems just and reasonable.
(3A) Any decision of a Magistrates Court having jurisdiction as in this Act provided shall be final and conclusive.
(4) Subject to this Act, the Justices Act 1886 (except the provisions of those Acts relating to appeals from the decisions of justices), shall apply, as far as practicable and with all necessary adaptations thereof, to the constitution, practice, and procedure of a Magistrates Court hearing and determining any application under this Act, and with respect to the service of summonses, the making of orders, and the payment and recovery of costs ordered to be paid and the transfer of jurisdiction as to enforcement of costs. (my emphasis).
The Dividing Fences Act 1953 - Part 4 General (Reprint 2D effective 26 March 2010), relevantly provides:
Section 18 Jurisdiction of and proceedings in Magistrates Courts or QCAT
(1) An application under section 9(1) or section 11(1) for an order to fence, or under section 16(2A)(d) or 16(3) for an order to fence or, as the case may be, repair may be made to a Magistrates Court held at a place appointed for holding Magistrates Courts within any Magistrates Courts district within or within 35km of the boundary of which the dividing fence or any part of the dividing fence in question is or is proposed to be constructed or, except in relation to section 11, may be made to QCAT.
(2) An application for an order under section 11(3) or, where an order to repair with respect to any dividing fence is made under this Act, an application as required by this Act for the consent of the Magistrates Court to the service under this Act with respect to that fence of a notice to fence, shall be made to a Magistrates Court held at the place at which that order to fence, or, as the case may be, repair was made or, if the appointment of that place as a place for holding Magistrates Courts is meanwhile cancelled, to a Magistrates Court held at a place appointed for holding Magistrates Courts within any Magistrates Courts district within or within 35km of the boundary of which the dividing fence or any part of the dividing fence in question is situated, or, except in relation to section 11, shall be made to QCAT.
(3) In or for the purpose of any proceedings in a Magistrates Court under this Act (not being proceedings for the recovery of any moneys which any person is in pursuance of this Act required or liable to pay)
(a) the application shall be commenced by complaint made by the applicant in person or by the applicant’s counsel or solicitor or other person authorised in that behalf to a justice of the peace who, in every case other than an application under section 11(1), shall issue his or her summons directed to the other party to those proceedings; (my emphasis).
(b) a Magistrates Court having jurisdiction as in subsections (1) and (2) provided;
(i) shall, subject to this Act, have and may exercise all the ordinary powers of a Magistrates Court;
(ii) may dismiss the application before it as justice may require or make such order thereon as is prescribed;
(iii) may take the best means of informing itself upon the merits of the case;
(iv) may, in the case of the making of any order or the dismissing of any application under this Act, in its discretion order the payment by such parties of such costs as to it seems just and reasonable.
(3A) Any decision of a Magistrates Court having jurisdiction as in this Act provided shall be final and conclusive.
(4) Subject to this Act, the Justices Act 1886 (except the provisions of those Acts relating to appeals from the decisions of justices), shall apply, as far as practicable and with all necessary adaptations thereof, to the constitution, practice, and procedure of a Magistrates Court hearing and determining any application under this Act, and with respect to the service of summonses, the making of orders, and the payment and recovery of costs ordered to be paid and the transfer of jurisdiction as to enforcement of costs. (my emphasis).
The new provisions are identical save for the amendments substituting the Small Claims Tribunal for QCAT.
The initial application filed by the plaintiff/respondent was commenced pursuant to Rule 26 of the UCPR:
Rule 26 Content of application (relevant provisions).
(1) An application must be in the approved form.
(6) If an application is made under an Act, the application must state the name and section number of the Act under which the application is made.
(8) An application filed in the District Court or a Magistrates Court, or material filed with it, must show that the court has jurisdiction to decide the application.
The applicant/defendant has asked me to find that this court has no jurisdiction to hear the substantive application as the proposed work does not fall within the definition of a fence as the work proposed is in fact in the nature of a retaining wall.
What has not been adequately addressed – by the applicant/defendant – is the issue I have herein raised, that is, has the application been correctly commenced.
The respondent/plaintiff to this application has, in its written submissions, touched on the issue of jurisdiction at paragraph 5.
Relevant Law – Procedural Issues – Jurisdiction
5.1 It is clear and unambiguous that this Honourable Court has jurisdiction to hear the matter. The Act states as much:
“A Magistrates Court .. may, upon application by either such person, make an order (order to fence)”[1]
“An application under section 9(1) .. for an order to fence, may be made to a Magistrates Court”[2]
[1] Section 9(1) of the Dividing Fences Act – Proceedings consequent on notice to fence.
[2] Section 18(1) of the Dividing Fences Act – Jurisdiction of and proceedings in a Magistrates Court.
I agree with the submission that the Respondent/Plaintiff can make the application and that this court has the jurisdiction to make an Order to Fence in circumstances when the consequences of the order would result in the amount ordered would exceed the then $7,500 limit of the Small Claims Tribunal and the now $25,000 limit of QCAT. Having said that it is, due to the date the substantive application was filed, it is the then limit of $7,500 of the Small Claims Tribunal that is relevant.
However, the issue in my view is whether or not the application was properly commenced.
Despite the issue not being raised by the applicant/defendant the respondent/plaintiff has touched on this issue in its written submissions at paragraph 7 and during the hearing of the application;
7.1 The complaints in relation to the Universal (sic) Civil Procedure Rules 1999 are, in my respectful submissions, misguided and incorrect.
7.2 The Act states that;
“.. the Justices Act 1886 …. Shall apply, as far as practicable and with all necessary adaptations therefore, to the constitution, practice, and procedure of a Magistrates Court hearing and determining any application under the Act”[3]
[3] Section 18(4) of the Dividing Fences Act.
7.3 Therefore it is submitted that the Justices Act, not the UCPR applies to an application under the Act.
7.4 It follows that the orders sought pursuant to rules 16, 26(8) and 293 are not within the lawful jurisdiction of this Court, properly constituted pursuant to the Justices Act.
7.5 If the applicants/defendants wish to take issue with the form of the complaint as filed (and not objected to despite ample opportunity), the respondent/plaintiffs, if necessary, undertake to file a complaint in the form specified by the Justices Act regulations, seeking essentially the same relief as the Application, as required by section 48 of the Justices Act.
If seems there is some acknowledgement by the Respondent/Plaintiff that the initiating application has not been commenced in accordance with section 18(3)(a) and (4) of the Dividing Fences Act (Reprint 2B). This issue was also discussed by Mr. Trewavas during submissions at which time I informed the court that it would be one of the issues I would look at in determining the issue of jurisdiction.
Having now considered the way in which the substantive application was started – I could not be satisfied that it was commenced in accordance with the provisions of section 18(3) and (4) of the Dividing Fences Act (Reprint 2B) and nor in accordance with the Justices Act. Further rule 26(6) UCPR require that if the application is made under an Act, the application must state the name and section number of the Act under which the application is made. This does not appear to have been particularised in the substantive application for an Order to Fence.
Rule 16 UCPR – Setting aside originating process
The court may;
(a) declare that a proceeding for which an originating process has been issue has not, for want of jurisdiction been properly started.
This, in my view would be a disappointing order to make. In an attempt to remedy what I believe to be an irregularity I have to taken into account the other provisions of the UCPR including:
5 Philosophy – overriding obligations of parties and court
(1) The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.
(2) Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.
(3) In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.
(4) The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.
14 Proceeding incorrectly started by application
(1) This rule applies if the court considers a proceeding started by application should have been started by claim or may more conveniently continue as if started by claim.
(2) The court may;
(a) order that the proceeding continue as if started by claim; and
(b) give the directions the court considers appropriate for the conduct of the proceeding; and
(c) if the court considers it appropriate—order that any affidavits filed in the proceeding be treated as pleadings, alone or supplemented by particulars; and
(d) make any other order the court considers appropriate.
371 Effect of failure to comply with rules
(1) A failure to comply with these rules is an irregularity and does not render a proceeding, a document, step taken or order made in a proceeding, a nullity.
Unfortunately for the respondent/plaintiff and for that matter, both parties, the UCPR does not regulate the way in which an Application for an Order to Fence is to be started.
That being the case I can not, in my view, apply the aforementioned provisions.
The Act that does regulate how the substantive application is to be commenced is of course the Dividing Fences Act and in that regard the Justices Act applies.
Further and to remove all doubt, the Acts Interpretation Act[4] provides at section 44(3);
[4] 1954, Qld.
Section 44 – Summary proceedings;
(3) In an Act, a provision that provides that another type of proceeding is to be heard and decided summarily, or before justices or a magistrate, means that the proceeding is a summary proceeding under the Justices Act 1886.
It would follow that I declare the originating application has not been properly started/commenced and that I order the application be re-commenced. Given this order there is no requirement at this stage to decide the issue of ‘definition of a fence’.
I order the respondent/plaintiff pay the applicant/defendants costs incidental to this application in the amount agreed between the parties within 28 days of this decision being published. If the parties cannot agree as to the amount of costs I order the costs to be assessed by the Registrar.
I direct that my decision be published pursuant to rules 663 and 664 or the UCPR by respectfully that the Registrar forward a copy of the decision to the Solicitors for the parties.
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