JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : JACKSON -v- CHRISP CORAM : WAGER DCJ HEARD : 4 MARCH 2011 DELIVERED : 4 MARCH 2011 PUBLISHED : 11 MARCH 2011 FILE NO/S : APP 73 of 2010 BETWEEN : GEORGE NEVILLE JACKSON Appellant
AND
DANIEL LEE CHRISP
Respondent
FILE NO/S : APP 74 of 2010 BETWEEN : GEORGE NEVILLE JACKSON Appellant
AND
DANIEL LEE CHRISP
Respondent
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ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : REGISTRAR Citation : JACKSON v CHRISP Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE LANGDON Citation : JACKSON v CHRISP Catchwords: Appeal - Magistrates Court - Dividing Fences Act 1961 - Appeal out of time - No discretion to extend time - No denial of justice - No jurisdiction to determine appeal from registrar Legislation: Civil Judgments Enforcement Act 2004
Criminal Appeals Act 2004
District Court Rules 2005
Dividing Fences Act 1961
Freedom of Information Act 1992
Magistrates Court (Civil Proceedings) Act 2004
Magistrates Court (Civil Proceedings) Rules 2005
Magistrates Court Act 2004
Rules of the Supreme Court 1971
Supreme Court (Court of Appeal) Rules 2005 Result: Appeals dismissed
Plaintiff to pay costs of both appeals
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Representation: APP 73 of 2010 Counsel:
Appellant : In person
Respondent : Mr B P Wheatley
Solicitors:
Appellant : Not applicable
Respondent : Mossensons
APP 74 of 2010 Counsel:
Appellant : In person
Respondent : Mr B P Wheatley
Solicitors:
Appellant : Not applicable
Respondent : Mossensons
Case(s) referred to in judgment(s):
Cameron v Cole (1944) 68 CLR 571
Devereaux-Warnes v Hall [2006] WASCA 268
McKeon v Knapton [2009] WADC 170
Rankilor v Circuit Travel Pty Ltd [2010] WADC 170
Wilson v Westpac Banking Corporation [2011] WADC 13
Wise v The Proprietors of Strata Plan 21513 [2008] WADC 80
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1 WAGER DCJ: [This judgment was delivered extemporaneously on 4 March 2011 and has been edited from the transcript.]
2 By notice of appeal, dated 24 September 2010, the appellant, Mr Jackson, appeals against the decision of her Honour Magistrate Langdon, made in the Armadale Magistrate Court following a trial on 14 October 2009, in relation to a s 14 Dividing Fences Act1961 dispute, and that is APP 74 of 2010. 3 Mr Jackson also applies by notice of appeal dated 24 September 2010, against the decision of the registrar made on 3 September 2010 in action 674 of 2009 in the Armadale Magistrates Court, ordering default judgment against the appellant in the sum of $10,006.05, and this is APP 73 of 2010. 4 Both appeals relate to protracted proceedings in relation to the determination of repairs to and contribution of payment for a retaining wall and a dividing fence between neighbouring properties at 20 and 22 Heather Road, Roleystone. 5 The first issue to determine is whether the court has jurisdiction to deal with the appeals. Dealing firstly with APP 73 of 2010, the appellant has incorrectly stated that the default judgment was a decision of a magistrate when, in fact, it was the decision of the registrar. The default judgment is made on a Form 13 document of the Magistrates Court of Western Australia civil jurisdiction. 6 On 19 August 2010, after the decision of the learned magistrate, the matter was listed before her Honour on application. Her Honour made it clear at the relisting that the orders she had made following trial were final, and this is at the AB 101 to 103 (ts 2 – 4) and she referred to the legislation. The legislation relevantly states at s 15(5) of the Act: The Magistrates Court hearing a complaint made pursuant to subsection (4) may by order determine – (a) whether the fence is in need of repair; and (b) if so, the kind and extent of repairs and by whom the repairs are to be effected and the period within they are to be carried out. 7 Section 15(4) sets out the ability of the owner to give notice and make a complaint to the Magistrates Court, claiming that the owner of the adjoining land has failed to assist in repairing the fence in accordance (Page 5)
with the section. Section 15(6) provides that an order of the Magistrates Court made pursuant to s 15(5) is final. 8 On 19 August 2010, her Honour clarified that she had made orders pursuant to s 15(5) of the Act on 14 October 2009 and therefore that, by statute, the orders were final. Her Honour advised that the parties could, if they chose, list the matter before a registrar pursuant to the Civil Judgments Enforcement Act 2004 and her Honour referred to Form 13. 9 The respondent in these proceedings, Mr Chrisp, ultimately applied for default judgment in relation to the appellant's failure to comply with the order made by the learned magistrate on 14 December 2009. I am there quoting from the document; it is not a matter of opinion. 10 Although her Honour had not made any new orders on 14 December 2009 and had, in fact, made an order on 14 October 2009 that her Honour had reiterated on 19 August 2010, it is quite clear that the registrar was dealing with the judgment dated 3 December 2010 and that in the registrar's judgment dated 3 September 2010 the registrar was referring to her Honour's orders of 14 October 2009. The registrar has written a date figure '12', as opposed to a '10' on the document, but it is clear, particularly in light of her Honour's pronouncement that the orders were final, that they are the same orders. 11 Accordingly, this matter is an appeal from the registrar's decision on 3 September 2010. Section 29 of the Magistrates Court Act 2004 sets out that an appeal from a registrar is to be made to a magistrate. Section 9(4) of the Civil Judgments Enforcement Act2004 provides: A person who is dissatisfied by a decision of an officer of the court who is prescribed under subsection (3), made on an application or request dealt with by the officer may apply to the court for a review of the decision. 12 This court, therefore, does not have jurisdiction to deal with APP 73 of 2010 and, accordingly, that matter is struck out. 13 I now turn to APP 74 of 2010. This appeal was filed nearly one year after the learned magistrate's judgment. Mr Jackson submits that that was because of the difficulties once the quotation was obtained and, indeed, the quotations were provided more than 30 days after the date of the decision and matters were then dragged out, leading to the significant time delay. However, it should be noted that the delay was in relation to what happened after the orders had been made, not in relation to what happened during the hearing itself. (Page 6)
14 Section 40 of the Magistrates Court (Civil Proceedings) Act 2004 provides that an appeal from the Magistrates Court to the District Court must be commenced within 21 days after judgment. There are no express provisions in the Act empowering a court to extend the time within which an appeal may be commenced. Rule 51(4) of the District Court Rules provides: A notice of appeal must be filed and served within 21 days after the date of the appealable decision. 15 There is nothing in the District Court Rules to empower the court to extend the period of 21 days. Recently, in the decision of Wilson v Westpac Banking Corporation [2011] WADC 13, her Honour Judge Braddock considered the question of whether, on an appeal from the Magistrates Court that was out of time, the time limits set were mandatory or whether an extension of time could be granted. Her Honour referred to the decision of Judge Sweeney in McKeon v Knapton [2009] WADC 170 and said [16] – [21] of her decision: The bank relies upon the decision of McKeon v Knapton. In that case Judge Sweeney considered the same issue in relation to an appeal from a Magistrates Court decision arising out of a motor vehicle accident. Judge Sweeney, having considered and contrasted various other appeal provisions in West Australian jurisdictions, including the Supreme Court (Court of Appeal) Rules 2005, the State Administrative Tribunal Act 2004 and the Criminal Injuries Compensation Act 2003, concluded that there was no power to extend time in relation to an appeal under section 40 of the Magistrates Court (Civil Proceedings) Act. 16 Judge Sweeney also considered a previous decision of this court in Wise & Anor v The Proprietors of Strata Plan 21513 [2008] WADC 80, in which Judge Keen came to a contrary conclusion. I am not persuaded by the reasoning of Judge Keen and respectfully agree with Judge Sweeney that the mandatory 21-day time limit is prescribed by the principal legislation. 17 The 21-day period is not provided by subordinate legislation such as the Rules of the Supreme Court1971 or of the District Court authorising the filing of the appeal. The primary legislation both creates the right of appeal and prescribes its operation by time. This is in distinction to the provisions of the other jurisdictions previously referred to, which may contain express power to extend time; for example, the Criminal Appeals Act 2004, s 28(3). (Page 7)
18 Alternatively, the time limits are provided in the subsidiary legislation; for example, the Supreme Court (Court of Appeal) Rules 2005. 19 And she then goes on to refer to those rules: Judge Sweeney was assisted in her consideration of the issue by the case of Patterson & James v The Public Service Board of New South Wales (1984) 1 NSWLR 237, where the right of appeal was found in s 54 of the Government and Related Employees Appeal Tribunal Act 1980, which provided that, in section 55(1) … 20 Her Honour then goes on to refer to that legislation. Ultimately, her Honour says this: The provision of a statutory right of appeal, the placing of the time limit within the primary legislation and the failure to make any express provision for the extension of time in conjunction with that time limit leads to the conclusion that there is no right of appeal after 21 days have elapsed. 21 Having also considered the judgment of his Honour Judge Keen in the matter of Wise & Anor v The Proprietor of Strata Plan 21513, I agree with the reasons delivered by their Honours Judges Braddock and Sweeney, her Honour Judge Braddock in the matter to which I have just referred, Wilson v Westpac Banking Corporation and to her Honour Judge Sweeney in McKeon v Knapton. So for that reason I consider that I do not have the power to extend time within which to appeal but if I am mistaken in relation to the mandatory time limit, then I make the following observations in relation to Mr Jackson's grounds of appeal. 22 The appellant has proceeded on the basis that the matter was a minor case claim pursuant to the Magistrates Court (Civil Proceedings) Act 2004. However, it is my view that this is not the correct position. 23 The appellant filed a Form 53 Magistrates Court (Civil Proceedings) Rules 2005 claim arising under the Dividing Fences Act1961. Part 21 of the Magistrates Court (Civil Proceedings) Rules 2005 applies to jurisdictions conferred by other acts, which include the Dividing Fences Act 1961. The matter proceeded as a claim within the court's general civil jurisdiction pursuant to s 6 of the Magistrates Court (Civil Proceedings) Act 2004 and came within the court's statutory jurisdiction pursuant to s 8 of the Magistrates Court (Civil Proceedings) Act2004. 24 The matter was initially listed before his Honour Magistrate Jones on 3 June 2009 for a listings conference. His Honour (ts 7, AB 7) raised that (Page 8)
he considered that the matter may be a minor case and therefore counsel for the respondent would not be able to appear at trial without further application. The following exchange occurred: MR TSEN: In this case it's a Form 53 application. Does it come under a minor case claim? HIS HONOUR: As far as I'm concerned it does but you can argue whatever way you wish. MR TSEN: All right. Thank you. HIS HONOUR: At first blush it's a minor case trial. 25 His Honour then adjourned the matter to be heard before a magistrate on 14 October 2010. His Honour Magistrate Jones did not make an order on 3 June 2009, for the matter was to be dealt with as a minor case matter. His Honour did not arrange for a listing before a registrar pursuant to Magistrates Court (Civil Proceedings) Rules 2005 for a pre-trial conference. No order was made by his Honour Magistrate Jones under s 16(1) of the Magistrates Court (Civil Proceedings) Act 2004. 26 Section 16(1)(j) sets out that a case in which the value of the claim or the relief claimed by the claimant is no more than the minor case jurisdictional limit and that the claimant has not elected to have it dealt with under the minor case procedure, has not previously elected, then it can be dealt with under the minor case procedure. But I repeat that his Honour did not make any such order. 27 Further, there was no order made in respect of the respondent not being able to have representation at trial, pursuant to s 44(2) and s 30 of the Magistrates Court (Civil Proceedings) Act 2004 in relation to minor claims. 28 I now turn to the grounds of appeal and that was that there was a denial of natural justice and the appellant has listed 13 grounds in the notice of appeal and further supported those grounds in his outline of submissions dated 1 March 2001, and supplemented them further by oral submissions today. The ground raises the issue of natural justice and in relation to natural justice I make the following comments. In Cameron v Cole (1944) 68 CLR 571, 589, Rich J said: It is a fundamental principle of natural justice applicable to all courts, whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle be not observed the person affected is (Page 9)
entitled ex debito justitiae to have any determination which affects him set aside. In such a case there has been no valid trial at all. 29 Natural justice requires that a litigant on either side be given a reasonable opportunity to present his case and the ability of a self represented litigant to present his case is different from that of a litigant represented by counsel. In Rankilor v Circuit Travel Pty Ltd [2010] WADC 170 [70], a recent decision of his Honour Judge Birmingham, his Honour summarised the principles that have been identified in previous decisions in relation to the position of a litigant in person and I have considered those paragraphs. 30 So the ultimate issue is whether Mr Jackson was given a reasonable opportunity to present his case at trial. I now turn to the issues. Factually, the evidence that was led at trial is as follows. Her Honour commenced the hearing on 14 October 2010 and said at ts 2, AB 10: Your claim is in relation to rubble associated with the damage to the retaining wall and also the loss of that dividing fence. Her Honour explained the procedure because both parties were self represented, and this occurred at transcript 3, appeal book 11. The claimant/appellant, Mr Jackson, gave evidence from transcript 4. The evidence included that he had lived at 20 Heather Road, Roleystone, since 1994 and that the respondent had moved in 12 years ago. As a result of many cyclones, damage including falling trees had occurred. At least three trees had fallen on the dividing fence that was damaged and the retaining wall had cracked. 31 At ts 5, Mrs Chrisp, the wife of the respondent, was said by Mr Jackson to have advised him that an insurance payout had been received for the fence, of $1,200, on an earlier occasion. Approximately three years earlier the respondents had put a concrete slab in for the driveway and Mr Jackson's evidence was that he had warned them in relation to the retaining wall and the impact of the slab on it. 32 The slab, when installed, he said, fell directly on to the retaining wall, with a 5 inch gap only, thereby causing water to run between the retaining wall and the slab, causing additional corrosion that contributed to the collapse of the retaining wall. Further, a carport structure was sitting on the respondent's property, directly on the retaining wall, causing erosion, and the respondents had failed to prune their jasmine bush, placing weight on the fence on top of the wall. 33 At ts 6, Mr Jackson said that the respondents had sought advice in relation to a possible contractor and he had provided them with the name (Page 10)
of Richie Wilson, a local builder. After the claimant/respondent received quotes for replacement they questioned the ownership of the retaining wall and said that Mr Jackson was responsible for 50% of the cost of the wall and the dividing fence. 34 Mr Jackson said that Brook & Marsh had carried out a survey of the respondent's property that showed that the top of the walls sat partially on Mr Jackson's property. The survey also showed that the level of the two properties was the same, but that the respondent's property dropped by 1.1 m for a distance of 25 m. There is no suggestion that the survey was obtained in relation to the retaining wall issue. It was accepted that it was obtained in relation to proposed building on the respondent's property. 35 Mr Jackson's testimony was that records obtained through the Freedom of Information Act 1992 indicated that the former owners of 22 Heather Road, Roleystone, the home of the respondent, had been Mr and Mrs Joyce and they had built the retaining wall in 1977. A letter in relation to the information was tendered as exhibit 2. Photographs of the dividing fence and retaining wall as described by Mr Jackson were tendered as exhibit 3. 36 Mr Jackson at ts 12 advised that a quote from September or October 2008 for repair to the wall of $4,000, and the fence of $2,000 had been obtained but that the sum would have to be increased because of additional damage. Mr Jackson denied all matters put to him in cross examination relevant to the respondent's case. Mrs Jackson was called as a witness. Her evidence effectively corroborated that of Mr Jackson. 37 Mr Chrisp, the respondent, gave evidence (ts 40) that the portion of the fence and rocks that were removed, and were therefore the subject of the application, had no bearing on the tree that had fallen. The tree had fallen on to the rear shed and on to the neighbour's fence on the other side and therefore damage was caused to a completely different area, he said. His evidence was that there had been no falling trees on the area of the retaining wall and fence the subject of the application. 38 At ts 42 Mr Chrisp said that the appellant had removed rocks and had been asked to put them back but he had not. Mrs Jackson was recalled (ts 48) at the appellant's request, and she denied removing stones from the wall. Mr Chrisp called Mr Armenti (ts 50), a bobcat operator of 22 years experience, who provided a quotation for the construction of a wall of limestone, at $10,068.52. However, (ts 58) he was not able to give the measurements of the quotation. (Page 11)
39 Mr Armenti said (ts 54) that a Colorbond fence would have been cheaper than the mesh fence that was presently in place. Mrs Chrisp (ts 60) gave evidence that substantially corroborated her husband's evidence. She confirmed (ts 63) that she did not know the amount of the insurance claim, but that it was $1,200, she thought. She said that the sum related to the damage to the far boundary fence, where substantial damage had been caused with the fall of a tree. It was her evidence that the sum did not relate to any damage to the retaining wall and portion of the fence in question. 40 On 14 October 2009, on completion of evidence (ts 76) her Honour Magistrate Langdon gave her decision. Her Honour confirmed that the matter came before her pursuant to Form 53 of the Magistrates Court (Civil Proceedings) Rules 2005 and that the matter arose under the Dividing Fences Act 1961. Her Honour did not deal with the matter as a minor case claim. 41 Her Honour made the following orders that are at ts 78, AB 86. She said: Pursuant to section 14 of the Dividing Fences Act 1961 the claimant and defendant are to pay in equal proportions the repair or construction of the fence, including the retaining wall dividing their properties. The defendant is to obtain, in not less than 30 days, two independent quotations for the cost of repair or construction that I have mentioned in order 1 and the lesser of those two quotations is to be accepted by the parties and acted upon as soon as practicable by the contractor; and I make no further order as to costs. Yes, thank you. 42 I now turn to the specific matters that are raised to illustrate, on the appellant's case, that there has been a denial of natural justice. The appellant has submitted that Mr Chrisp was not the registered owner of the property. Subsequent to the hearing, a copy certificate of title has been provided to this court that shows Mrs Chrisp as the registered proprietor. This was not evidence before her Honour Magistrate Langdon. It constitutes fresh evidence. 43 I note that Mr Chrisp and Mrs Chrisp were both present at the hearing at the trial and Mr Chrisp, throughout his evidence, deferred to his wife and indicated that she would be in a better position to give evidence on some of the matters raised. At ts 45 and ts 46 Mr Chrisp makes reference to 'Kathleen'. Mrs Chrisp's evidence corroborated that of her husband and she gives evidence at ts 60 onwards. (Page 12)
44 Pursuant to s 40(5) of the Magistrates Court Act 2004 and/or s 53, the reception of fresh evidence is a matter that does require some consideration by the court. I am grateful to counsel for the respondent for providing me today with the decision of Devereaux-Warnes v Hall [2006] WASCA 268, delivered on 6 December 2006, where the appeal court makes comments in relation to the issue of fresh evidence. 45 I am not going to quote the matters that have been raised with me. Suffice to say that there would need to be exceptional circumstances for fresh evidence to be received and this is not a case of exceptional circumstance. Both parties were present. Both parties' evidence corroborated the other. They both gave evidence to say that they had an interest in the property in question. It is not a case where fresh evidence would be allowed to be called at appeal. 46 I now turn to Mr Jackson's submission that the letter from Mr and Mrs Joyce was not considered by the learned magistrate. Evidence was led in relation to the letter by the appellant and, indeed, the evidence was tendered during the course of evidence and was the subject of consideration. The learned magistrate received the letter and considered the letter. There has been no denial of natural justice in relation to the letter. 47 I turn now to the evidence of Mr Armenti, the bobcat operator called by the respondent, and in relation to the quotation it has been submitted by Mr Jackson that the learned magistrate placed undue weight on Mr Armenti's evidence in light of the fact that he could not provide measurements relevant to his quotation and that he had no experience as a fencing contractor or a stonemason. In her decision, her Honour Magistrate Langdon said in relation to Mr Armenti (ts 77, AB 85): It was evident from the testimonies of all the witnesses except for Mr Armenti that both sides have developed entrenched positions in relation to who was liable to repair the fence. 48 Her next comment in relation to his evidence came at ts 78, AB 86. She had made a determination in relation to the word fence, that it included the retaining wall, and she then proceeded: In Mr Armenti's testimony to the court he said he would class the wall, not as a structural wall, but as a rock pitched wall built to minimise and stop erosion of soil. I find, based on Mr Armenti's 22 years in the earthmoving business, that he gave reliable evidence and I find that his description of the subject retaining wall accords with the definition of retaining wall as (Page 13)
provided in section 4 of the local laws, and therefore the retaining wall is included to mean a fence. 49 I do not find that her Honour has misdirected herself in relation to Mr Armenti's evidence. There is no miscarriage of justice in relation to it. I now turn to the submission that was made in relation to the substance of the orders made by the learned magistrate. It was submitted by Mr Jackson that the orders were conditional and effectively were not complete orders. 50 I have already referred to the orders. The orders were, I find, complete orders and any difficulty that arose in the implementation of those orders is a matter that arose at a later time. I repeat what has been said, that s 15(6) of the Dividing Fences Act 1961 makes those orders final and it is inappropriate for me to comment further on them. 51 I am not going to go into detail on the lengthy submissions filed by Mr Jackson in relation to the matters for appeal in the outline of submissions on 1 March 2011. On the matters that I have not spoken of, there are a number of questions of fact that are raised. Questions of fact are matters for the magistrate's discretion. I am satisfied, having read the transcript of proceedings, that the learned magistrate allowed evidence to be called so that the issues of fact were before her and that there has been no breach of natural justice. 52 For the reasons that I have outlined, matters relevant to APP 73 of 2010; that is, the matter relating to the registrar, are not relevant to APP 74 of 2010 and so I disregard those submissions. 53 Ultimately, I consider that I do not have the statutory ability to extend the time within which the appeal may be lodged. In the event that I am mistaken as to that, then I would not have given leave to extend the time within which to appeal because I do not consider that there are any grounds that would allow me to do that and, in any event, I would have dismissed the appeal. Those are the orders that I make.
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