Hi v Hecker

[2013] NSWSC 1024

Supreme Court

New South Wales

Medium Neutral Citation:

Hi v Hecker [2013] NSWSC 1024

Hearing dates:

26/7/13

Decision date:

26 July 2013

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) I strikeout prayer five pursuant to the provisions of rule 14.28 in the Uniform Civil Procedure Rules 2005.

(2) I strikeout grounds three to nine inclusive pursuant to rule 14.28.

(3) I fix the matter for hearing on 21 August 2013 at 10am with an estimate of two hours.

(4) I reserve to the judge hearing the appeal the question of whether the plaintiff should obtain an order extending time for bringing the appeal.

(5) I direct the plaintiff to serve a copy of the transcript of evidence in the Local Court at her own expense upon the defendant within seven days of the date hereof.

(6) I direct the plaintiff to file in Court and serve upon the defendant by Friday, 16 August 2013, a folder containing a copy of the transcript of evidence and a copy of all documentary exhibits tendered before the learned magistrate.

(7) I dispense with any requirement for the filing of written submissions.

(8) The costs of today, so far as they may be recoverable by self represented persons, are costs in the appeal.

(9) I return exhibit A to the plaintiff.

Catchwords:

PRACTICE & PROCEDURE - application for summary dismissal under UCPR r14.28 LOCAL COURT APPEAL - application for order extending time to bring appeal

Legislation Cited:

Dividing Fences Act 1991 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Hope v Bathurst City Council (1980) 144 CLR 1

Category:

Interlocutory applications

Parties:

Ji He (Plaintiff)
Allyson Hecker (Defendant)

Representation:

Counsel:
In person (plaintiff)
In person (defendant)

File Number(s):

2013/178500

EX TEMPORE Judgment

1. Campbell J: The parties to this appeal were parties to a dispute under the Dividing Fences Act 1991 (NSW) ("the Act") heard in the Local Court of New South Wales by his Honour Magistrate Bradd. His Honour resolved the dispute under s13 of that Act in favour of the present defendant and made orders for the erection of a fence and ancillary orders for the clearing of obstructions or encroachments along the boundary in the line of the fence.

1. The plaintiff has filed a summons seeking leave to appeal, which was amended on 24th June 2011, pursuant to directions made by Senior Deputy Registrar McKenna. The defendant brings a motion before me today for summary dismissal of the appeal effectively on the ground that it is incompetent.

1. Section 19(2) of the Act provides that "a party to proceedings under this Act who is dissatisfied with the order of the Local Court...as being erroneous in point of law may appeal to the Supreme Court".

1. Under part 50 of the Uniform Civil Procedure Rules 2005 (NSW), the summons instituting the appeal in this Court must be filed within twenty-eight days from the decision appealed from. The plaintiff's summons was not filed until 11th June 2013 and, as the defendant correctly points out, is therefore out of time.

1. One of the amendments made, as directed by Senior Deputy Registrar McKenna, was the plaintiff seeking an extension of time to bring the appeal. The new prayer one in the summons appears to seek that end, although the syntax is not very clear because, I assume, the plaintiff does not have English as a first language. She is assisted by an interpreter today. Order two seeks leave to appeal from that part of the order that requires the path of the fence to be cleared.

1. As I understand the provisions of the dividing fences legislation, which I have set out, there is no provision or necessity requiring leave. The appeal either proceeds as of right on the basis that the plaintiff is dissatisfied with the order in point of law or it is incompetent.

1. What constitutes a point of law is of course authoritatively established by the decision of the Court of Appeal in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. It presents a very narrow gateway to a dissatisfied party to seek redress.

1. I should say that the defendant's notice of motion also seeks to have the notice of appeal dismissed on the basis that it is vexatious, frivolous or an abuse of process. With respect, I think there is some misconception here because this is not an attempt to re-litigate a dispute which has been settled finally by the courts, but, rather, is an attempt to exercise a statutory right of appeal in the context of the same proceedings, so I reject that argument.

1. I will not go through the matter in great detail, but, it seems to me, considering the plaintiff's amended summons in its most favourable light from her point of view, there are some very obvious defects. Before dealing with them, I remind myself that the legal bar that the defendant has to clear to persuade a court that a case should be (I will use the common expression) thrown out before it is properly aired in a hearing is set very high. It is based on a test of virtual certainty of outcome. Before I can exercise the powers invoked by the defendant, I need to be satisfied that the appeal is clearly untenable or that the outcome is of such certainty that it should not be allowed to proceed in the normal way. The bar is set this high to give effect to the fundamental principle of open justice. Access to the courts, once regularly invoked, should not be readily denied even if a case, on the face of it, seems very weak; provided the case is not demonstrably hopeless the interests of the administration of justice require that the initiating party should have his or her day in Court.

1. Bearing these principles in mind, I return then to the summons. It is quite clear to me that the Court's power, if the appeal is ultimately made good, is quite narrow. It would not extend beyond correcting the legal error and, at most, remitting the matter to the Local Court for redetermination in accordance with law. I note in particular that s19(2) speaks of a person who is dissatisfied with the order rather than, as it might be put more broadly, the decision. All this suggests to me is that the narrowness of the right of appeal necessarily implicit in the phrase "erroneous in point of law" may be narrower still, when one considers that the plaintiff needs to demonstrate legitimate legal dissatisfaction with the order made.

1. It is quite clear to me that order five sought in the summons goes well beyond any power this Court could conceivably exercise in discharge of its obligation under s19 of the Act. Accordingly, I propose to strikeout prayer 5.

1. Moreover, in my judgment, grounds three to nine in the summons cannot possibly be construed as raising any complaint solely based on a point of law and I will strike them out of the amended summons. Only grounds 1 and 2 seem capable of giving rise to a point of law. Ground one asserts that the magistrate did not pay any regard to the case presented by the plaintiff. If that ground is made good, it demonstrably raises a point of law to the extent to which the plaintiff would have been denied natural justice. The only way to tell whether the ground has any substance or not is to hear the appeal and to consider the evidence that was in fact led. I propose to allow ground one to stand but understood on that restricted and limited basis.

1. Ground two, which is somewhat prolix, complains about the magistrate's finding of encroachment. It might be a difficult question whether such a finding can be challenged given the language of subsection (2) that I have referred to more than once. However, from what the plaintiff explained to me during the course of her argument it might be that ground two is raising a point of law in the limited sense discussed by the High Court in Hope v Bathurst City Council (1980) 144 CLR 1 at 7-8, that is that the evidence before the magistrate necessarily required the decision that there was no encroachment. The Hope v Bathurst City Council ground is rarely established. In Azzopardi Glass JA referred to it as satisfied only in marginal cases. It seems to me that the plaintiff's task in persuading this Court that this ground is made out is very difficult indeed. However, once again understood in that restricted and limited manner I will permit ground two to stand.

1. What really needs to happen in this case is that it be brought to hearing as soon as possible so that the controversy can be settled finally once and for all by this Court exercising its appellate jurisdiction. That might of course result in a remitter. However, the parties need to be able to take whatever steps are necessary to discharge their obligations to each other as neighbours sooner rather than later.

1. I understand that the transcript of evidence before the Local Court is now available. I propose to make orders which will fix this matter for hearing in the near future.

1. Ms Hecker has, in the light of my reasons, so far asked for security for costs of the hearing. I have rejected her application in that regard for the reason that security is granted only in the most exceptional circumstances. It is almost never granted to deny a natural person, who is a member of our community, access to the courts to seek legal redress. All members of our community enjoy that right equally even when a case is weak. I reject the application.

1. I make the following orders:

(1) I strikeout prayer five pursuant to the provisions of rule 14.28 in the Uniform Civil Procedure Rules 2005.

(2)   I strikeout grounds three to nine inclusive pursuant to rule 14.28.

(3)   I fix the matter for hearing on 21 August 2013 at 10:00 am with an estimate of two hours.

(4)   I reserve to the judge hearing the appeal the question of whether the plaintiff should obtain an order extending time for bringing the appeal.

(5)   I direct the plaintiff to serve a copy of the transcript of evidence in the Local Court at her own expense upon the defendant within seven days of the date hereof.

(6)   I direct the plaintiff to file in Court, and serve upon the defendant by Friday, 16 August 2013, a folder containing a copy of the transcript of evidence and a copy of all documentary exhibits tendered before the learned magistrate.

(7)   I dispense with any requirement for the filing of written submissions.

(8)   The costs of today, so far as they may be recoverable by self represented persons, are costs in the appeal.

(9)   I return exhibit A to the plaintiff.

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Decision last updated: 01 August 2013