Howlin v Clarence City Council - [2013] TASFC 7

[2013] TASFC 7

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Howlin v Clarence City Council [2013] TASFC 7

PARTIES:  HOWLIN, Darryl Robert
  v
  CLARENCE CITY COUNCIL

FILE NO/S: FCA 586/2012
JUDGMENT

APPEALED FROM: Clarence City Council v Howlin [2012] TASSC 26

DELIVERED ON:  26 July 2013
DELIVERED AT:  Hobart
HEARING DATE:  19 November 2012

JUDGMENT OF: Blow CJ, Tennent and Porter JJ

CATCHWORDS:

Appeal and New Trial – Appeal – Practice and procedure – Tasmania – Powers of Court – Further evidence – Power of Court to permit on hearing.

Supreme Court Civil Procedure Act 1932 (Tas), s48.
Aust Dig Appeal and New Trial [389]

Appeal and New Trial – Appeal – Practice and procedure – Tasmania – Powers of Court – When appeal lies – By leave of Court – Appeal against order for costs.

Supreme Court Civil Procedure Act 1932 (Tas), s44.

Aust Dig Appeal and New Trial [383]

Highways – Creation and extinction of highways – Dedication – What constitutes dedication – In general – Common law principles – Intention to dedicate – Rebuttal of the presumption of dedication that arises from user.

President of the Shire of Narracan v Leviston (1906) 3 CLR 846, followed.
Aust Dig Highways [13]

Highways – Construction, maintenance and repair – Roads – Whether road maintained as shown on municipal map.

Local Government Act 1962 (Tas), s694.
Aust Dig Highways [27]

REPRESENTATION:

Counsel:
             Appellant:  In person
             Respondent:  S B McElwaine
Solicitors:
             Appellant:  In person
             Respondent:  Shaun McElwaine + Associates

Judgment Number: [2013] TASFC 7
Number of paragraphs: 245

Serial No 7/2013
FCA 586/2012

DARRYL ROBERT HOWLIN v CLARENCE CITY COUNCIL

REASONS FOR JUDGMENT FULL COURT

BLOW CJ
TENNENT J
PORTER J
26 July 2013

Order of the Court

Appeal dismissed.

Serial No 7/2013
File No FCA 586/2012

DARRYL ROBERT HOWLIN v CLARENCE CITY COUNCIL

REASONS FOR JUDGMENT FULL COURT

BLOW CJ
26 July 2013

I have read the judgment of Tennent J in draft form. I agree that this appeal should be dismissed. I agree with her Honour's reasons for that conclusion. In my view the appellant has not identified any error on the part of the learned trial judge, either in relation to the action that he tried or the costs application that followed it.
FCA 586/2012

DARRYL ROBERT HOWLIN v CLARENCE CITY COUNCIL

REASONS FOR JUDGMENT FULL COURT

TENNENT J
26 July 2013

These reasons relate to an appeal against a decision of Evans J handed down 28 May 2012 in proceedings commenced by the Clarence City Council ("the Council") in which it sought a declaration that Marsh Street, Opossum Bay, was not a highway, or alternatively a declaration that Marsh Street was not a highway maintainable by it pursuant to the Local Government (Highways) Act 1982. His Honour concluded that Marsh Street was not a highway and was not maintainable by the Council, and so declared. His Honour subsequently dealt with an application for costs by the Council, and determined that Mr Howlin should pay…

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.

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Details

Case: [2013] TASFC 7
Decision Date: 26 July 2013

CaseChat Overview and Summary

The Full Court of the Supreme Court of Tasmania heard an appeal brought by the appellant, Howlin, against the Clarence City Council. The dispute concerned the Council's decision to refuse an application for a permit to construct a dwelling on land owned by the appellant.

The central legal issue before the Full Court was whether it possessed the power to permit the adducing of further evidence on the hearing of the appeal, and if so, whether it should exercise that power in the circumstances of this case. The Court was required to consider the relevant provisions of the *Supreme Court Civil Procedure Act 1932* (Tas) and the principles governing the admission of fresh evidence on appeal.

The Court analysed the scope of its powers under the *Supreme Court Civil Procedure Act 1932* and concluded that it did have the power to permit the adducing of further evidence on appeal. However, the Court exercised its discretion against permitting the further evidence in this instance, finding that the evidence sought to be introduced was not of such a character that it would have been likely to have had a decisive effect on the original decision. The Court therefore dismissed the appeal.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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