Hill v Vicars - [2022] NSWSC 828

Supreme Court

New South Wales

Medium Neutral Citation: Hill v Vicars [2022] NSWSC 828
Hearing dates: 16 June 2022
Date of orders: 16 June 2022
Decision date: 16 June 2022
Jurisdiction: Common Law
Before: Garling J
Decision:
See [24]

Catchwords:
APPEALS — appeal from Local Court to Supreme Court — application for judicial review — decision not to exercise jurisdiction under Dividing Fences Act 1991 — failure to draw Local Court’s attention to jurisdictional fact — error of law established — appeal upheld

Legislation Cited:
Dividing Fences Act 1991 ss 4, 6, 7, 11, 12, 14
Local Court Act 2007 ss 39, 40, 45
Supreme Court Act 1970 s 69
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Subdiv 17
Woollahra Local Environmental Plan 2014 cl 5.21

Cases Cited:
Alwiah v Watts [2004] NSWSC 948
Larney v Johansson [2013] NSWCA 409
Lesley-Swan v Owners of SP 32735 [2013] NSWSC 1635
Pearson v Jamaica Blue Pty Ltd [2019] NSWSC 1737

Texts Cited:
Not applicable

Category: Principal judgment
Parties: Thomas Hill (P1)
Rachael Lantry (P2)
Claire Vicars (D1)
Peter Daniel (D2)
Local Court of New South Wales (D3)
Representation:
Counsel:
J Ireland QC (P1, P2)
A Cornish (D1, D2)
A Polden (D3)
Solicitors:
McGirr Lawyers (P1, P2)
Carmody Lawyers (D1, D2)
Crown Solicitor for New South Wales (D3)

File Number(s): 2021/00325201
Publication restriction: Not applicable
Decision under appeal

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

21 October 2021

Before:

Hosking LCM

File Number(s):

2021/00031328

EX TEMPORE Judgment

Summons

The plaintiffs appeal pursuant to s 39, as of right, or alternatively s 40, by leave, of the Local Court Act 2007, from the decision of the Local Court made on 19 October 2021. On that day, after a hearing of the application by the plaintiffs for orders pursuant to the Dividing Fences Act 1991, to which I will refer as “the Act”, the Local Court dismissed the application and ordered that the plaintiffs in this Court, who were the applicants in the Local Court, pay the respondents’ costs of that application up until 23 September 2021.
The plaintiffs appealed on the basis that there had been an error of law by the magistrate in determining that there was in existence in October 2021 a “sufficient dividing fence”, as that term is used in the Act.
Earlier today, leave was granted to file an amended summons in this Court, which added to the statutory appeal, a claim for relief under s 69 Supreme Court Act 1970, in particular a claim that the decision of the Local Court should be set aside for want of jurisdiction or error of law on the face of the record.
A third defendant, the Local Court of NSW was joined. It was granted leave to file a submitting appearance. It took no further part in the proceedings.
The active defendants in this Court resisted the appeal and the grant of any relief pursuant to s 69 Supreme Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hill v Vicars

Details

AGLC: Hill v Vicars [2022] NSWSC 828
Case: [2022] NSWSC 828
Decision Date: 16 June 2022

CaseChat Overview and Summary

In the matter of Hill v Vicars, the appellant, Hill, sought judicial review of a decision by the Local Court not to exercise jurisdiction under the Dividing Fences Act 1991. The dispute involved a boundary fence between Hill and the respondent, Vicars, which Hill claimed was encroaching onto his property. Hill appealed to the Supreme Court on the basis that the Local Court had failed to draw its attention to a jurisdictional fact and thereby made an error of law.

The legal issues before the court were whether the Local Court had correctly identified the jurisdictional fact that should have been considered and whether the failure to do so constituted an error of law warranting judicial review. The court had to determine if the Local Court's decision not to exercise jurisdiction was based on a proper application of the Dividing Fences Act 1991 and if the error was significant enough to warrant the appeal being upheld.

The court found that the Local Court had indeed failed to consider a crucial jurisdictional fact, which was that the boundary fence in question was over 100 years old. This fact was significant because it implicated the historical fence provisions under the Dividing Fences Act 1991. The court held that the failure to consider this fact was an error of law, as it directly affected the court's jurisdiction to hear the matter. Consequently, the appeal was upheld, and the matter was remitted back to the Local Court for reconsideration with proper jurisdictional facts in mind.

Orders