JACKSON -v- CHRISP [2012] WASCA 158

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASCA 158
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:37/2011	Heard:	12 JUNE 2012
Coram:	PULLIN JA BUSS JA MURPHY JA	Delivered:	20/08/12
No of pages:	45	Judgment Part:	1 of 1
Result:	Appeal in respect to 73 of 2010 allowed Appeal in respect to 74 of 2010 dismissed
Category:	A
PDF Version

Parties:	GEORGE NEVILLE JACKSON DANIEL LEE CHRISP
Catchwords:	Appeal against Magistrates Court orders Practice and procedure Dividing fences Whether orders 'final' Default judgment in the Magistrates Court Procedural fairness Whether the District Court has power to extend time in which to appeal
Legislation:	Dividing Fences Act 1961 (WA), s 13(6), s 14, s 15(7)(c), Local Government Act 1995 (WA) Magistrates Court (Civil Proceedings) Act 2004 (WA), s 8 Magistrates Court Act 2004 (WA), s 36
Case References:	Gauci v Briffa [2011] WASCA 20 Hall v Vaatuitui [2006] WASCA 195 Hockey v Yelland [1984] HCA 72; (1984) 157 CLR 124 Jackson v Chrisp [2011] WADC 38 Kuligowski v Metrobus [2002] WASCA 170; (2002) 26 WAR 137 Patterson and James v Public Service Board of New South Wales [1984] 1 NSWLR 237 Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 57; (2007) 35 WAR 412 Re Western Australian Trotting Association (1992) 9 WAR 178 The Australian Coal and Shale Employees Federation v Aberfield Coal Mining Co Ltd [1942] HCA 23; (1942) 66 CLR 161 The Colonial Sugar Refining Co Ltd v Irving [1905] AC 369 The Minister for Home & Territories v Smith [1924] HCA 41; (1924) 35 CLR 120 Worrall v The Commercial Banking Co of Sydney Ltd [1917] HCA 67; (1917) 24 CLR 28

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : JACKSON -v- CHRISP [2012] WASCA 158 CORAM : PULLIN JA

BUSS JA

MURPHY JA

HEARD : 12 JUNE 2012 DELIVERED : 20 AUGUST 2012 FILE NO/S : CACV 37 of 2011 BETWEEN : GEORGE NEVILLE JACKSON

Appellant

AND

DANIEL LEE CHRISP

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : WAGER DCJ

Citation : JACKSON -v- CHRISP [2011] WADC 38

File No : APP 73 of 2010, APP 74 of 2010

(Page 2)

Catchwords:

Appeal against Magistrates Court orders - Practice and procedure - Dividing fences - Whether orders 'final' - Default judgment in the Magistrates Court - Procedural fairness - Whether the District Court has power to extend time in which to appeal

Legislation:

Dividing Fences Act 1961 (WA), s 13(6), s 14, s 15(7)(c),

Local Government Act 1995 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 8
Magistrates Court Act 2004 (WA), s 36

Result:

Appeal in respect to 73 of 2010 allowed

Appeal in respect to 74 of 2010 dismissed

Category: A

Representation:

Counsel:

Appellant : In person

Respondent : Mr B P Wheatley

Solicitors:

Appellant : In person

Respondent : Mossensons

(Page 3)

Case(s) referred to in judgment(s):

Gauci v Briffa [2011] WASCA 20
Hall v Vaatuitui [2006] WASCA 195
Hockey v Yelland [1984] HCA 72; (1984) 157 CLR 124
Jackson v Chrisp [2011] WADC 38
Kuligowski v Metrobus [2002] WASCA 170; (2002) 26 WAR 137
Patterson and James v Public Service Board of New South Wales [1984] 1 NSWLR 237
Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 57; (2007) 35 WAR 412
Re Western Australian Trotting Association (1992) 9 WAR 178
The Australian Coal and Shale Employees Federation v Aberfield Coal Mining Co Ltd [1942] HCA 23; (1942) 66 CLR 161
The Colonial Sugar Refining Co Ltd v Irving [1905] AC 369
The Minister for Home & Territories v Smith [1924] HCA 41; (1924) 35 CLR 120
Worrall v The Commercial Banking Co of Sydney Ltd [1917] HCA 67; (1917) 24 CLR 28

(Page 4)

1 PULLIN JA: I agree with Murphy JA.

2 BUSS JA: I agree with Murphy JA.

MURPHY JA

Introduction

3 The appellant (Mr Jackson) and the respondent (Mr Chrisp) were neighbours. Mr Jackson lived at 20 Heather Road, Roleystone (No 20) and Mr Chrisp lived at 22 Heather Road, Roleystone (No 22). A fence of 90 - 100 metres in length divided the two properties. According to Mr Jackson, 18 - 25 metres of the fence was in disrepair. Part of this 18 - 25 metres of fencing stood on a retaining wall between the two properties. According to Mr Jackson, there were 5 - 9 metres length of the retaining wall which was also in disrepair, which had caused rocks and rubble to spill onto his driveway. The carport at No 22, owned by Mr Chrisp, rested on part of this retaining wall. (All lengths are approximate.)

4 Mr Jackson applied to the Magistrates Court for orders for the repair of the dividing fence, including the retaining wall. The magistrate made initial orders which required repairs to be contributed to equally, and directed that two independent quotations be obtained by Mr Chrisp. The magistrate did not determine, however, the kind and extent of repairs required. Mr Chrisp obtained two quotations which Mr Jackson disputed on the basis that they covered the whole 90 - 100 metres of the fence and not the 18 - 25 metres of the fence in dispute, that they related to 35 metres of retaining wall and not to the 5 - 9 metres in alleged disrepair, and that the quotations were not from sources independent of Mr Chrisp. After these matters had been raised by Mr Jackson as an issue on which he wished to be heard, the magistrate entered 'default' judgment against Mr Jackson, without a further hearing. The effect of the 'default' judgment was to order Mr Jackson to pay one-half of the lower of the two disputed quotations.

5 Mr Jackson appealed against the magistrate's decisions to the District Court and those appeals were dismissed. He now appeals to this court.

6 There has been no application for review of the orders of the Magistrates Court under s 36 of the Magistrates Court Act 2004 (WA).

(Page 5)

Background

7 On 13 May 2009, Mr Jackson lodged an application (by way of form 53) in the Magistrates Court seeking orders to the effect that Mr Chrisp:

(a) clean all the rubble which had fallen onto his driveway from around the retaining wall;

(b) repair all damage to the retaining wall; and

8 Form 53 is a form used in the Magistrates Court and is described as 'Application under Conferring Act'. Section 8 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) provided that the court's civil jurisdiction 'includes any jurisdiction conferred on the Court by a written law other than this Act'. Mr Jackson's application was stated to be lodged pursuant to the Dividing Fences Act 1961 (WA) and the 'Local Government Act 1995 (WA) - City of Armadale Local Laws Relating to Fencing'. Mr Jackson did not specify in his application which provision of the Dividing Fences Act he relied upon, although as discussed later, he appears to have relied upon s 15(7)(c) of that Act.

9 There was a listing conference on 3 June 2009 before Magistrate Jones. Mr Jackson appeared in person, and Mr Chrisp appeared by a solicitor. The magistrate said that these matters were generally dealt with under the minor claims procedure, but allowed the solicitor to appear for Mr Chrisp on the basis that it was merely a listing conference. The magistrate set the matter down for hearing on 14 October 2009. The magistrate, in response to a submission by Mr Jackson to the effect that as Mr Chrisp was not personally in attendance, he (Mr Jackson) was entitled to default judgment, said:

Well, he's turned up, as far as I'm concerned, for a listing conference. He's represented by Mr Tsen [the lawyer] and I'll accept that and I'm not - he is not to be represented at a hearing if there is a hearing, but he can be represented now and I will make that quite clear.

...

HIS HONOUR: What days have we got? I'm going to set it straight down for hearing, I think, but he has to be represented, he represents himself.

TSEN, MR: So he cannot be represented by a solicitor in the final hearing?

(Page 6)

HIS HONOUR: No I won't give leave to.

10 After listing the matter, the following exchange occurred:

TSEN, MR: That sounds all right. Your Honour, if I just may just quickly, may I inquire as to the basis on which a solicitor isn't allowed to attend on behalf - because my understanding was that in these sort of applications, it was fine for a solicitor.

HIS HONOUR: Well, maybe you can give me a reason why you should appear, but as far as I'm concerned, it's a minor trial case, a minor case matter and they are - generally solicitors are precluded from appearing without leave and there has been no good reason why you have been given leave.

TSEN, MR: In this case, it's a form 53 application. Does it come under a minor claim ...

HIS HONOUR: As far as I'm concerned it does, but you can argue whichever way you wish.

TSEN, MR: All right, thank you.

HIS HONOUR: At first blush, it's a minor case trial, minor case matter.

11 There was a substantive hearing on 14 October 2009 before Magistrate Langdon. Mr Jackson appeared for himself as the applicant and Mr Chrisp appeared for himself as the respondent. Mr Jackson gave evidence of a 5 metre collapse of the stone retaining wall (GB 18) and of disrepair of about 25 metres of fence (GB 19). Mr Jackson contended, amongst other things, that Mr Chrisp was liable for repairing the retaining wall as it was retaining earth for Mr Chrisp's property and it had been damaged by the slab for Mr Chrisp's carport, and erosion from the roots of a large plant (GB 18). He also contended that the dividing fence had been damaged by a tree falling from Mr Chrisp's property and that Mr Chrisp was liable to repair the damage. At the hearing (GB 21 - 22, 81 - 82), Mr Jackson, although without express reference to the provision, appeared to rely on s 15(7)(c) of the Dividing Fences Act 1961 (see [76] below).

12 Mr Chrisp gave evidence and rejected the contentions of Mr Jackson. Mr Chrisp called Mr Armenti as a witness. He was a bobcat operator who did earthmoving. Mr Armenti gave evidence that he had provided a quote for clearing the area around part of the damaged wall and erecting a new 1-metre high wall (GB 59 - 62). He could not give the length of the wall for which he had quoted. At one point, he thought it was 10 to 15 metres 'maximum' (GB 59), at another time he said it could be over 20 metres (GB 66). He said he did not know because he did not have his working

(Page 7)

sheets with him (GB 64, 66). There were no measurements on his quote (GB 67). He had not himself quoted for constructing the limestone wall. The quote for erecting the wall to which he had referred had come from a subcontractor. Mr Armenti could not give an indication of the cost of a metre-run of limestone (GB 67). He had only personally quoted for the earthworks (GB 67). He also said that it was common practice for a limestone wall to be constructed and to core drill into the limestone and put a fence, such as 'colorbond' fencing, on top. He had not quoted for any colorbond or other type of fencing (GB 61 - 62).

13 The magistrate said that she was unable to make a finding as to what, if any, portion of damage a falling tree may have had on the wall and the fence. The magistrate continued (GB 86):

I, therefore, find that section 15 subsection (7) paragraphs (b) and (c) of the act do not apply in this case. I agree with Mr Jackson that the City of Armadale local laws relating to fencing do apply in this case.

Accordingly, I find that the word 'fence' includes a retaining wall. 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 or 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 provided in section 4 of the local laws and therefore the retaining wall is included to mean a fence.

In light of the evidence before me, I reject Mr Jackson's testimony that Mr Crisp is responsible for the whole cost of repair or renewal of the fence, including the retaining wall. There is simply insufficient corroborating evidence before me to prove on a balance of probabilities that the Crisp's neglect of the wall and fence caused the wall and fence to deteriorate to its present irreparable state; rather, I find that unnecessary delay on the part of both sides of the fence resulted in this dispute not being resolved satisfactorily at an earlier stage.

Offers, it seems, have been made through the past several years on both sides of the fence to try and resolve this dispute. None of those offers were accepted or followed through. Based on the evidence before me, I make the following orders in the spirit of the legislation and in light of the contribution of both parties to the deterioration of the fence and wall. I also have regard to the kind and extent of repairs required as described in Mr Armenti's testimony.

14 The magistrate then made the following orders (BB 71):

1. Pursuant to S.14 Dividing Fences Act 1961, The Claimant [Mr Jackson] and the Defendant [Mr Chrisp] are to pay in equal

(Page 8)

proportions the repair or construction of the fence, including the retaining wall dividing their properties.

2. The Defendant [Mr Chrisp] is to, in not less than 30 days, obtain two independant [sic] quotations for the cost of repair or construction in order (1) herein and the lesser of those two quotations is to be accepted by the parties and acted upon as soon as practicable by the contractor.

3. No order as to costs.

15 On 8 December 2009, Mr and Mrs Chrisp wrote to Mr and Mrs Jackson, enclosing 'two quotes for works to be completed between 20 and 22 Heather Road, Roleystone for your perusal' (GB 181). One quote was from WaterCon, dated 8 December 2009, for the sum of $23,994, exclusive of GST. The other was for $20,192.10, consisting of individual quotes for different parts of the works comprising:

• earthworks and limestone wall - $11,235.40

• materials for Stratco fence - $3,950

• delivery charge for fence materials - $106.70

• labour to construct fence - $4,900

The letter also included a quote for a boundary survey for $1,320.

16 On 14 December 2009, Mr and Mrs Jackson replied to Mr and Mrs Chrisp. The letter said, relevantly (GB 182):

Re Dividing Fence and Wall 20-22 Heather Road. Roleystone.

We are in receipt of your letter dated 8th Dec and the enclosed quotations from F & MJ Armenti ($11,235.40) and your own company WaterCon ($23,994.00) for the cost of constructing a new dividing wall and a new Stratco 1.8m high fence.

Whilst we have no objection to your carrying out this work it is to be clearly understood that you do so at your own cost. We are however concerned that you are prepared to instruct a bobcat operator to carry out work which would be best placed in the hands of a builder.

On the 14th Nov you were instructed by the court to obtain 2 quotations for the repair of the wall and fence and you were given 30 days to do this.

As instructed by the court we are prepared to pay 50% of the repair costs. I.e. 50% of the repair to the gap in the wall and 50% of the repair to the existing 1m high chain link fence.

(Page 9)

If you are proceeding with the additional building works please advise of your builder's programme for the works.

17 On 21 January 2010, Mr and Mrs Jackson wrote to the clerk of the courts, City of Armadale, in relation to the order of Magistrate Langdon dated 14 October 2009 (GB 183). Mr and Mrs Jackson advised the clerk of the court to the effect that they had received the two quotes from Mr and Mrs Chrisp. The letter stated that one of the quotes, from WaterCon, was the defendant's own company and that the other quote was from Mr Armenti, who was a subcontractor for Mr and Mrs Chrisp, and that neither quote could be considered to be independent. They also said that the quote in respect of the retaining wall did not relate 'to the 9 metres of damaged wall' and that the 'quantities of the repair to the fence are too vague to be measured'. They also said that the actual measurement of the damaged fence was 18 metres which would indicate that the quote for the Stratco fencing at $4,900 involved a cost of $272 per metre. They said that the standard cost of Stratco fencing installed was between $75 and $85 per metre. They also said that 'we are supposed to be replacing the existing chain fence which is considerably cheaper'. The letter also advised the court that Mr and Mrs Jackson had, in any event, 'decided to carry out the repairs to the wall and to provide a temporary repair to the fence'.

18 On 7 April 2010, Mr Chrisp filed an application (GB 172) in the Magistrates Court (by a form 23), the import of which was, and is, not clear, but which referred to the orders of 14 October 2009, and referred to the letter from Mr and Mrs Jackson dated 14 December 2009. The application was accompanied by an affidavit sworn by Mr Chrisp to which he annexed the correspondence referred to earlier, including the quotations, and a letter written by Mr and Mrs Chrisp to the clerk of courts, dated 21 January 2010. That letter stated, in effect, that they had supplied Mr and Mrs Jackson with quotes in accordance with the court's order dated 14 October 2009, and concluded, 'We feel we have fulfilled our part of the court order and don't want to waste anymore of our time doing this again if the claimant is just going to ignore the court issue and not respond'.

19 At a directions hearing on 4 June 2010 before Magistrate Boon, Mr Chrisp appeared in person (GB 106). There was no appearance by Mr Jackson, who had not, it seems, been served with the papers filed by Mr Chrisp on 7 April 2010. It is evident from the transcript that Magistrate Boon was under the misapprehension, for much of the hearing, that the application of 7 April 2010 had been filed by Mr Jackson, and not

(Page 10)

Mr Chrisp. The application was adjourned until 1 July 2010. A formal order was entered on 4 June 2010, adjourning Mr Chrisp's application dated 7 April 2010 to 1 July 2010 (BB 84).

20 On 28 June 2010 (BB 85), Mr Jackson filed his response to Mr Chrisp's application. The affidavit annexed a letter to the clerk of the courts in terms similar to Mr Jackson's letter of 21 January 2010 (BB 86 - 88).

21 On 1 July 2010, Mr Chrisp's application dated 7 April 2010 came before Magistrate Boon (GB 89). The magistrate was informed by Mr Jackson that, in his submission, the quotations obtained by Mr Chrisp did not comply with the court order. He said (GB 91) that the actual work involved under the court order related to an 18 metre repair to a fence and a nine metre repair to a retaining wall, whereas the quotations covered the 89-metre length of the property. In relation to the fencing itself, Mr Jackson said that he had obtained quotes for the 18 metres of fence which required repairing and that the highest of the quotes was $1,760 and the lowest was $1,500 (GB 93).

22 Magistrate Boon said (GB 96):

HER HONOUR: Were there already orders made by Magistrate Langdon, at a trial about this?

JACKSON, MR: Correct.

HER HONOUR: She ordered that the claimant and the defendant are to pay in equal proportions, the repair and construction of the fence, including the retaining wall dividing the properties. The defendant is to, it [sic] not less than 30 days, obtain two independent quotations for the cost of repair or construction in order one, herein and the lesser of those two quotations, is to be accepted by the parties and acted upon and you're saying that the quotations are not in accordance with those works.

JACKSON, MR: They don't relate to that work at all, your Honour.

CRISP, MR: They do, your Honour, they do. Apart from the 89 metres, which I put an option in to fence the whole property boundary, to give them the option that it would be done and dusted, finished. As I say there was still the costs associated with the surveying of that area, there is still the costs associated with the removing of the structure, which is the original timber fence that's still there. There is still those costs that have to be added into the equation.

JACKSON, MR: Your Honour, I'm sorry, but that is absolutely incorrect.

(Page 11)

HER HONOUR: Look, because I didn't hear the trial, there is absolutely no point in me trying to work out what happened.

JACKSON, MR: I agree.

HER HONOUR: It should be before Magistrate Langdon, who dealt with it, because I didn't realise that this dispute about what was actually (indistinct) and she's the one that made the order and she knows (indistinct) heard the evidence what was going on.

23 Magistrate Boon then adjourned the matter and, on 1 July 2010, an order was entered that the 'form 23 application' was adjourned to be heard by Magistrate Langdon for a special appointment on 19 August 2010 (BB 100).

24 On 16 August 2010, Mr Jackson swore a statutory declaration which annexed another statutory declaration, sworn by Danny John Joyce on 9 August 2010 (BB 101). Mr Jackson said that Mr Joyce's statutory declaration indicated that he was a joint owner of 22 Heather Road between 12 November 1976 to 11 July 1988; that the retaining wall was built to support the concrete slab on which the current house on 22 Heather Road was built; and that the retaining wall was in place for at least eight years before a development took place on the adjoining site of 20 Heather Road. Mr Jackson's statutory declaration sworn 16 August 2010 also indicated, again, that, in his view, the court's orders had not been complied with because two independent quotes had not been obtained covering the relevant area of the boundary. Mr Jackson stated:

Accordingly, I respectfully ask the Court to amend its decision made on 14/10/2009 and to rule that the defendant [Mr Chrisp] is responsible for the repairs to the retaining wall, as it is supporting the house on 22 Heather Road, Roleystone.

25 At the special appointment hearing on 19 August 2010, the magistrate, in a relatively short hearing, said (GB 100 - 105):

HER HONOUR: All right. What I'm going to say to you two today is - and you might want to make a note of this for your own reference - I made orders on 14 October 09, as I read out. Under section 13 subsection (6) of the Dividing Fences Act an order of the court made under the section that I made it under is final. Those orders stand. I'm not revisiting the matter. I'm not reopening it. Further, section 18 of the Dividing Fences Act sets out - it's headed Method of Recovering Money Payable Under This Act. Subsection (3) says, 'An order of the court made under,' a particular section which applies to this matter, 'is a judgment of the court and may be enforced accordingly.'

(Page 12)

The way to enforce an order made in the civil law of jurisdiction of the court is to refer to the Civil Judgments Enforcement Act and enforcement regulations. Either of you, if you're not satisfied that the order is going to be complied with, then have recourse under the Civil Judgments Enforcement Act, namely, either of you can lodge a form 13. You can find out from registry what that form is and it must be supported by an affidavit. It's an application essentially for enforcement of my judgment.

CRISP, MR: Well, that could be made - - -

HER HONOUR: That will go before the registrar and I can tell you the registrar will enforce my order literally so that - particularly order 2, says, 'The lesser of the two quotes is to be accepted by the parties.' No, I'm not hearing from you at the moment. So that form is to be filed. It will be directed to the registrar and the Civil Judgment Enforcement Act and provisions take over. What did you want to say?

JACKSON, MR: Two things, your Honour. First of all, in order to comply with your order, the quotations have actually got to be relative to it. Neither of these quotations are relative to your order.

HER HONOUR: You can argue that out with the registrar. I'm not revisiting the matter. My order is final.

JACKSON, MR: The second matter is that - as you will see from the photographs which I sent to you - I have in fact rebuilt the wall. Because the situation was so dangerous, I have rebuilt the wall and I have also removed most of the debris, of which forms a large part of Mr Crisp's quote, and in order to safeguard the children next door, I have also put up a temporary fence. I have done this all at my own cost and in coming here today, I was going to ask you and I have got photographs, your Honour, to show in case there's any doubt about this, that that is the original state of the wall. That is today's state of the wall.

HER HONOUR: Mr Jackson, I am not revisiting the matter. My orders are final.

JACKSON, MR: Your Honour, I have complied with the order.

HER HONOUR: You can - - -

JACKSON, MR: I have rebuilt the wall.

HER HONOUR: You have recourse to enforce the judgment as I have just very specifically outlined. You're both excused. My formal order for today is that the claimant's form 23 application is dismissed.

26 The formal order of the court on 19 August 2010 (BB 110) was:

1. The Claimants [sic] Form 23 Application is dismissed.

(Page 13)

27 Insofar as her Honour said that she had addressed, and dismissed, the 'claimant's form 23 application', her Honour also seems to have been under the misapprehension that the application of 7 April 2010 was filed by Mr Jackson. Also, it is not clear why her Honour had referred to s 13(6) of the Dividing Fences Act in the exchange with the parties. Section 13 is in pt II of the Dividing Fences Act and is concerned with the construction of dividing fences. Her Honour's orders of 14 October 2009 referred to s 14, which is in pt III of the Dividing Fences Act and pt III is headed 'Repair of dividing fences'.

28 On 30 August 2010, two competing default judgment (form 13) applications were filed. Mr Chrisp filed an application in the Magistrates Court for default judgment in the sum of $10,096.05 (BB 111). Mr Jackson also filed an application for default judgment in the sum of $2,360.15 (BB 112). Mr Jackson's application had attached to it a document (BB 113) which stated that Mr Chrisp's form 23 application had been dismissed on 19 October 2010, that he had an invoice dated 7 June 2010 from Neville Jackson & Associates in the sum of $3,160.30 'for the completing of all works regarding the repair to the retaining wall dividing the properties' and that he had also submitted a quotation dated 28 August 2010 from Fuzzy Fencing 'for all work associated with the replacement of the damaged fence, over a distance of 17 metres, in the sum of $1,560'. The attachment concluded that Mr Jackson accordingly requested the court to order default judgment against Mr Chrisp in the sum of $2,360.15 'being half of the total costs'.

29 There was no further hearing.

30 On 3 September 2010, under a court order entitled 'Civil Judgment Enforcements Act 2004 Form 8 - Order', the Magistrates Court ordered that (BB 114):

1. [Mr Chrisp's] application for judgment is granted against [Mr Jackson] in the sum of $10,096.05.

2. [Mr Jackson's] application for judgment is refused pursuant to section 13(1)(b) of the Civil Judgment Enforcements Act 2004.

31 On 8 September 2010 (GB 189), Mr Jackson wrote to the Magistrates Court and informed the court that it had come to his attention that Mr Chrisp had transferred his interest in No 22 on 10 July 2009 to his wife, and that Mr Chrisp was, thus, not the owner of the property when the case was heard in August 2009. Mr Jackson asked that his letter be
(Page 14)

made known to Magistrate Langdon 'so that she can consider how she chooses to amend her latest default judgment in this minor matter'.

32 On 23 September 2010 (GB 193), Mr Jackson wrote to the Magistrates Court with reference to a meeting which he had apparently had with an officer of the Magistrates Court, on 21 September 2010. Mr Jackson's letter dated 23 September 2010 included the following:

As I explained in making an Application for Default Judgement in my favour I was relying on Her Honour's advice to me in Court that I would have an opportunity to explain to you the ways in which the Defendant's two quotations failed to meet the requirements of the Court Order dated 14th October 2009. I had already raised the matter in Court and Her Honour's advice to me was 'You can argue that out with the registrar'

At our meeting you explained to me that Her Honour's instructions were not within your jurisdiction and that Her Honour was in error in giving me the comfort of your considered opinion as a means to seek justice.

1. The 2 quotations provided by the Defendant, to the Clerk of the Courts, Armadale Magistrates Court under cover of letter dated 31st January 2010, only stamped as received on 7 April 2010 Magistrates Court:

• were not independent, one being from the Respondent's own company, Watercon;

• neither quotation gives measurements for the length of fence or retaining wall to be repaired and the Watercon quote does not break down the cost or each element of the work which makes it impossible to know what one is paying for;

• neither quotation relates to the Order given by Her Honour Magistrate Langdon on 14th October 2009 which was to repair a 9 metre gap in the local stone retaining wall and repair an 18 metre damaged section in the chain link fence:

• the cheapest quote for the fence by F & MJ Armenti is in the sum of $8,956.70 which if one applies today's rates of $90/m for this type of fence would equate to 99.5 metres of fence where only 18 metres is required under the court Order. In both quotations the chain link fence is replaced with a Colorbond fence:

• both quotations appear to use the same sub-contractor for the construction of a limestone retaining wall, at a cost of $6,758.40, and are therefore not quotations that are independent of each other as required by the court Order. Both quotations replace the repair of the local stone existing wall with a new limestone wall and the F & MJ Armenti quotation measures this at 35 metres but only 9 metres are required under the court Order;

(Page 15)

• the Brook Marsh Pty Ltd quotation for surveying the boundary wall, in the sum of $1,200 plus GST was unnecessary, as the original drawings by architect Stephen W May clearly show the dimension of 6035 mm from the boundary to the house at 20 Heather Road Roleystone.

As I tried to explain in Court the repair to the retaining wall was no longer necessary as I had rebuilt the wall at a cost of $3,160.30.

My quotation from Fuzzy Fencing is for $1,560.00 so the total cost of the completed work would then be $3,160.30 + $1,560.00 = $4,720.30 as against the lowest quote from Armenti of $21,392.10.

It must be clear to anyone studying these figures that the Defendant has abused the trust the Court placed in him and that he has succeeded in using the Court to enable him to have the whole of his repairs carried out entirely at my expense and at no cost to him.

In regard to Common Law and to the Dividing Fences Act 1961 I know of no law that gives the Court the jurisdiction to Order me to;

1. demolish a sound existing wall and replace it with a new wall of higher specifications, longer length and increased height.

2. change the specification of a SUFFICIENT FENCE and replace it with a fence of higher specifications.

3. replace 18 metres of damaged fence with 99.5 metres of fence of a higher specification.

Therefore I believe that the judgement in favour of the Defendant's quotation for $20,192.10 was;

a. 'not within the jurisdiction of the court'

b. 'that in dealing with this minor case there was a denial of natural justice'.

c. 'that the judgement was beyond the Court's jurisdiction'.

You say in your letter that Magistrate Langdon's decision was based on the evidence presented at trial and that the Magistrate is unable to re-open the matter based on new evidence presented at a later date.

...

Given all of the above I believe there is ample opportunity for Her Honour to amend her judgement in my favour under the Civil Judgements Enforcement Act 2004- Sect 11- Sect 13 and Sect 105.

(Page 16)

I would ask that you bring all matters in this letter to Magistrate Langdon's attention for her consideration. (Italics in original)

The appeals to Wager DCJ

33 On 24 September 2010, Mr Jackson filed two notices of appeal in the District Court. One, appeal No 73 of 2010, related to the order of the Magistrates Court on 3 September 2010 (BB 2 - 9). The other, appeal No 74 of 2010, related to the order of the Magistrates Court on 14 October 2009 (BB 17 - 26).

34 Mr Chrisp, by his solicitors, filed submissions in both appeals on 25 February 2011 (BB 10 - 32). Mr Jackson filed a combined set of submissions, in both appeals, on 1 March 2011 (BB 60 - 65).

35 The appeals were heard before Wager DCJ on 4 March 2011 (GB 115 - 152). Mr Jackson appeared for himself and Mr Chrisp appeared by his solicitor, Mr Wheatley. Her Honour's reasons were recorded in Jackson v Chrisp [2011] WADC 38 (BB 33).

36 After hearing argument, Wager DCJ dismissed both appeals and ordered that Mr Jackson pay Mr Chrisp's costs of the appeals, including reserved costs (BB 1 and BB 16).

Orders of 3 September 2010

37 Wager DCJ dismissed Mr Jackson's appeal in relation to the orders of 3 September 2010 on the basis that they were made by a registrar and that under s 29 of the Magistrates Court Act, any appeal from a registrar is to be made to a magistrate. (At that stage, the letter from the Magistrates Court, dated 25 March 2011, referred to below, had not emerged.)

Orders of 14 October 2009

38 Her Honour dismissed Mr Jackson's appeal in relation to the orders of 14 October 2009 on the ground that any appeal was required to be commenced within 21 days by virtue of s 40 of the Magistrates Court (Civil Proceedings) Act and the appeal was commenced out of time (reasons [14] - [21]). In the alternative, she found that Mr Jackson had not established a denial of natural justice as alleged and that there was, accordingly, no merit in the appeal, in any event (reasons [28] - [50]). Prior to considering the merits, her Honour held that the proceedings in the Magistrates Court pursuant to which Magistrate Langdon had made the orders of 14 October 2009 were not a 'minor case' within the meaning of s 26 of the Magistrates Court (Civil Proceedings) Act

(Page 17)

(reasons [22] - [27]). Her Honour also rejected Mr Jackson's contention that the orders of 14 October 2009 'were conditional and effectively were not complete orders' (reasons [49]). The judge also rejected an application by Mr Jackson to adduce additional evidence (reasons [45]).

The Magistrates Court's letter of 25 March 2011

39 By letter dated 25 March 2011 (GB 197), in response to a query from Mr Jackson, regarding whether the Magistrates Court's order of 3 September 2010 had been made by a magistrate or a registrar, the Magistrates Court said:

In response to your letter dated 22 March 2011 I confirm the following:

The General Order (form 25) dated 14 October 2009 was an order made by Magistrate Langdon at the conclusion of your trial.

The Order (form 8) dated 3 September 2010 is the order made by Magistrate Langdon when an application for default judgment (form 13) was lodged by both parties and referred to the Magistrate by the Registrar. Further to this the Registrar signed the successful application for Default Judgment, however this was pursuant to Magistrate Langdon's order of 3 September 2010.

The Dividing Fences Act 1961

Relevant statutory provisions

40 Part I of the Dividing Fences Act is headed 'Preliminary' and includes s 5, the interpretation provision. In s 5, the words 'dividing fence', 'repair' and 'sufficient fence' are defined as follows:

dividing fence

means a fence that separates the lands of different owners whether the fence is on the common boundary of adjoining lands or on a line other than the common boundary;

repair includes re-erect and re-align and inflexions of the word repair include corresponding meanings;

sufficient fence, in relation to a dividing fence or a boundary fence referred to in section 16, means -

(a) any fence prescribed by a local law as a sufficient fence for the part of the local government district in which the dividing fence or boundary fence is, or is to be, erected; or

(b) any fence of the description and quality agreed upon by the parties concerned which does not fail to comply with any local law referred to in paragraph (a),

(Page 18)

or where no such local law or agreement is made, means -

(d) any fence determined to be a sufficient fence by the court pursuant to this Act;

41 Part II of the Dividing Fences Act is headed 'Construction of dividing fences'.

42 Part III of the Dividing Fences Act is headed 'Repair of dividing fences'. Part III includes s 14 and s 15.

43 Section 14 of the Dividing Fences Act provided:

14. Liability of adjoining owners to repair dividing fence

When a dividing fence is in need of repair the owners of land on either side of the fence are liable, subject to the provisions of section 15, to join in or contribute in equal proportions to the repair of the fence.

44 Section 15 of the Dividing Fences Act provided:

15. Procedure to compel contribution to repair dividing fence

(1) The owner of land separated from adjoining land by a dividing fence may give a notice to the owner of the adjoining land requiring him to assist in repairing the fence.

(2) A notice given pursuant to subsection (1) may state that the owner giving the notice -

(a) is prepared to repair the fence at his cost and the cost of the owner to whom the notice is given, in equal shares;

(b) is prepared to permit the owner to whom the notice is given to repair the fence at the cost of both the owners, in equal shares; or

and shall contain a proposal for repairing the fence upon the previous or other line, specifying the kind and extent of repairs and the line upon which they are to be effected.

(Page 19)

(3) An owner who has been given a notice pursuant to subsection (1) shall, within 14 days of the receipt by him of the notice, advise in writing the owner giving the notice that -

(a) he is prepared to join in the repairing of the fence in such one of the alternative manners set out in the notice as he specifies in the advice;

(b) he disputes the need for repairing the fence and is not prepared to bear any portion of the cost of repairing the fence; or

(4) Where an owner who has been given a notice pursuant to subsection (1) advises, in writing, the owner giving the notice that he disputes the need for repairing the fence and is not prepared to bear any part of the cost of repairing it or objects to the kind and extent of repairs or the line upon which the repairs are to be effected as provided in subsection (3), the owner who gave the notice may apply to the court at the place nearest to the place where the fence is situated claiming that the owner of the adjoining land has failed to assist in repairing the fence in accordance with this section.

(5) The court on an application made pursuant to subsection (4) may by order determine -

(a) whether the fence is in need of repair;

(b) if so, the kind and extent of repairs and by whom the repairs are to be effected and the period within which they are to be carried out,

and if the court thinks it is necessary, the court may determine -

(d) the compensation to be paid by one owner to the other owner in consideration of any extra expense involved in the provision of additional fencing because of re-alignment; and

(e) the compensation in the form of an annual payment to be paid by one owner to the other owner in consideration of loss of occupation of any of his land.

(5a) Where an order made under subsection (5) determines that the repairs to a fence are to be effected otherwise than on the common

(Page 20)

boundary of adjoining lands, the occupation of land on either side of that repaired fence in pursuance of or as a result of that order is not and shall not be deemed adverse possession as against the owner of the land or affect the title to or possession of the land except for the purposes of this Act.

(5b) When making an order under this section, the court shall be guided as to the kind and extent of repairs the court orders by the kind of fence in use in the locality where it is proposed to repair the fence, the purpose for which the lands that are or will be separated by the fence are used, and the type of sufficient fence (if any) prescribed under a local law made by a local government for that locality.

(6) An order of the court made pursuant to subsection (5) is final.

(7) Where an owner, who has been given a notice pursuant to subsection (1), fails to advise the owner giving the notice as provided in subsection (3) within 14 days after the receipt by him of the notice, the owner giving the notice may repair the fence and demand and recover from the owner to whom the notice was given, one-half of the cost of repairing the fence, but if —

(a) any dividing fence has been constructed partly by one owner and partly by another owner each shall bear the cost of repairing the part so constructed by him;

(b) any dividing fence or any portion thereof is damaged or destroyed by flood, fire, lightning, storm, tempest or accident the owner of the land on either side of the fence may immediately repair it without any notice to the other owner and is entitled to recover half of the expenses of so doing from the owner of the adjoining land;

(c) any dividing fence is damaged or destroyed in whole or in part by fire or by the falling of any tree or portion thereof the owner of the land through whose neglect the fire originated or caused damage or destruction to the fence, or the tree or part thereof fell, is bound to repair or renew as soon as practicable after the damage or destruction occurs the fence so damaged or destroyed.

(8) If an owner of land who is liable under subsection (7)(c) to repair or renew a dividing fence fails to do so, the owner of the adjoining land may repair or renew the fence and recover from the owner so liable and in default the whole of the cost of the repair or renewal.

45 Section 18 of the Dividing Fences Act,in pt IV, headed 'Miscellaneous', provided:
(Page 21)

18. Method of recovering money payable under this Act

(1) Moneys that a person is, in pursuance of this Act, required or liable to pay may be sued for and recovered in any court of competent jurisdiction.

(2) In proceedings for the recovery of moneys referred to in subsection (1), a certificate of the court as to the making and contents of an order made by it under section 9 or section 11 or section 15 is evidence of the matters set forth therein.

(3) Despite subsection (1), an order of the court made under section 9(1)(h), 13(5)(d) or 15(5)(d) or (e) is a judgment of the court and may be enforced accordingly.

46 In relation to s 18(3), the provisions of s 15(5)(d) and (e) have been set out above. Section 9(1)(h) and s 13(5)(d) are within pt II headed 'Construction of dividing fences'. Section 9(1)(h) referred to 'compensation' determined by the court under s 9(1), and s 13(5)(d) referred to the court determining an 'amount ... to be paid'.

Operation and effect of s 15 and s 18 of the Dividing Fences Act

47 For present purposes, the following observations may be made about the operation of s 15 and s 18 of the Dividing Fences Act.

48 Section 15(4) and s 15(5) operate, in substance, where the parties, by notice and responsive notice to each other in accordance with s 15(1) - s 15(3), are in dispute as to whether the dividing fence is in need of repair, and/or as to the kind and extent of repairs required, and/or as to the line upon which any repairs are to be effected. The court is empowered, under s 15(5) to resolve such disputes and to determine whether the fence is in need of repair (s 15(5)(a)); to make orders as to the kind and extent of repairs, by whom and within which period they are to be carried out (s 15(5)(b)); to make an order as to the line upon which repairs are to be effected (s 15(5)(c)); to fix and order any compensation to be paid by one owner to the other because of any extra expense involved in the provision of additional fencing because of any realignment (s 15(5)(d)); and to fix and order compensation for an annual amount to be paid by one owner to the other in consideration of any loss of occupation of land (s 15(5)(e)).

49 Section 15(5a) augments the operation of s 15(5) by providing, in effect, that a claim for adverse possession does not arise if the court, under s 15(5), determines that the repairs are to be effected other than on the common boundary. Section 15(5b) provides for a number of mandatory

(Page 22)

considerations to be taken into account in making orders under s 15(5) - relevantly under s 15(5)(b).

50 It is notable that s 15(5) does not refer to the making of any orders for payment for repairs. Rather, the purpose of s 15(5) is, in effect, to determine whether repairs are needed, and to delineate the nature and scope of the repairs and their location (s 15(5)(a), s 15(5)(b) and s 15(5)(c)) and once those matters have been determined and delineated, to empower the making of ancillary compensation orders in relation to the costs of realignment and loss of occupation (s 15(5)(d) and s 15(5)(e)).

51 Once orders have been made under s 15(5), with respect to a dispute under s 15(4), the cost of repairs is to be shared in equal proportions by virtue of s 14. In this way, s 14 operates in conjunction with s 15(5) so that an owner 'is, in pursuance of this Act, required or liable to pay', 'moneys' within the meaning of s 18(1). Those moneys may be 'sued for and recovered in any court of competent jurisdiction': s 18(1). Section 18(1) refers to 'any court of competent jurisdiction' and not just the Magistrates Court. This is presumably on the basis that the moneys in question might, conceivably, exceed the jurisdictional limit of the Magistrates Court, depending on the size, nature and location of the fence.

52 Where, however, the Magistrates Court, in relation to a s 15(4) dispute, has made compensation orders under s 15(5)(d) and s 15(5)(e), it is unnecessary to sue to recover those moneys, as they are regarded as judgments of the court, and may be enforced accordingly: s 18(3).

53 Section 15(7) provides for a range of circumstances in which the dispute resolution procedures of s 15(4) and (5) have no application. Section 15(7) provides for specific situations in which one or both landowners will be liable for the costs of repairs to the dividing fence. In that regard, s 15(7) may be seen as a provision of s 15 to which s 14 of the Act is subject, although some parts of s 15(7) - relevantly, the prefatory part of s 15(7) and s 15(7)(b) - reflect and operate on the same principle of equal contribution which is found in s 14.

54 By the prefatory words of s 15(7), where one owner gives notice to the other requiring the other to assist in repairs under s 15(1), but the other does not give a responsive notice under s 15(3), the first party may proceed to repair the fence and demand and recover one half of its costs of repair.

55 Section 15(7)(a) addresses the situation where the dividing fence has been constructed partly by one owner and partly by the other. In that

(Page 23)

case, each party is to bear the cost of repairing the part constructed by him.

56 Section 15(7)(b) addresses the situation where the fence has been damaged or destroyed by flood, fire, storm, tempest or accident. In that case (as opposed for example, to damage by wear and tear), either party may immediately without notice to the other repair the fence, and the party repairing the fence may recover half of the expenses of doing so from the other party.

57 Section 15(7)(c) and s 15(8) are to the effect that the owner of the land, by whose neglect a fire, or the falling of a tree, has damaged or destroyed the fence, is obliged to repair or renew the fence at its own cost.

Section 15(6) - 'final'

58 Ordinarily, where a statute provides that a decision is 'final', it is intended to preclude an appeal (but not judicial review): Re Western Australian Trotting Association (1992) 9 WAR 178, 181; Kuligowski v Metrobus [2002] WASCA 170; (2002) 26 WAR 137 [59] (Malcolm CJ) (reversed by the High Court, but on a different point). See also Hockey v Yelland [1984] HCA 72; (1984) 157 CLR 124, 130.

59 Accordingly, s 15(6) of the Dividing Fences Act indicates that Parliament intended to preclude a right of appeal from an order made under s 15(5) of the Dividing Fences Act. The Magistrates Court (Civil Proceedings) Act, which contains the general provision for appeals in s 40, does not alter that result.

60 The Magistrates Court (Civil Proceedings) Act was statute number 48 of 2004. The last amendment to the Dividing Fences Act was effected through statute number 59 of 2004, being the Courts Legislation Amendment and Repeal Act 2004 (WA). By s 141 of the Courts Legislation Amendment and Repeal Act 2004, s 15(6) of the Dividing Fences Act was specifically amended to change the reference in s 15(6) from 'Court of Petty Sessions' to 'court', ie, a Magistrates Court. Thus, s 141 of the Courts Legislation Amendment and Repeal Act 2004 amended s 15(6) of the Dividing Fences Act to change the reference to the relevant court, but left intact the provision insofar as it provided that an order of the court under s 15(5) was 'final'.

61 Where there is a general statutory right of appeal from decisions of a particular court to a higher court, subsequent legislation making a relevant

(Page 24)

decision of the court 'final' will have the effect of excluding an appeal:

Kuligowski v Metrobus

[59];

Hall v Vaatuitui

[2006] WASCA 195 [8].

62 It is only an order which is made 'pursuant to' s 15(5) which is 'final' and from which an appeal is precluded.

63 Accordingly, where, eg, an order is made in a suit for the recovery of 'moneys' under s 18(1), that order is not itself 'final', and s 15(6) does not preclude an appeal from such an order.

City of Armadale local laws relating to fencing

64 Section 15(5b) of the Dividing Fences Act refers, inter alia, to the type of sufficient fence prescribed under a local law made by a local government.

65 Under the powers conferred by the Local Government Act 1995 (WA), the City of Armadale resolved to make Local Laws on 21 August 2000 in relation to fencing.

66 The City of Armadale's Local Laws Relating to Fencing of 21 August 2000 included the following provisions:

Interpretation

4. In these Local Laws, unless the context requires otherwise-

'Act' means the

Dividing Fences Act 1961

;

...

'boundary fence' has the meaning given to it for the purposes of the Act;

...

'dividing fence' has the meaning given to it in and for the purposes of the Act;

...

'fence' means any structure, including a retaining wall, used or functioning as a barrier, irrespective of where it is located and includes any gate;

...

'sufficient fence' means a fence described in clause 6;

(Page 25)

...

PART 2 – SUFFICIENT FENCES

Sufficient Fences

6. (1) Unless by agreement between the owners of adjoining properties, a person shall not erect a dividing fence or a boundary fence that is not a sufficient fence.

(2) Subject to sub-clauses (3) and (4), a sufficient fence-

(a) on a Residential Lot is a dividing fence or a boundary fence constructed and maintained in accordance with the specifications and requirements of the First Schedule;

...

(5) Notwithstanding any other provisions in these Local Laws, a fence constructed of stone or concrete shall be a sufficient fence only if it is designed by a structural engineer where:

(a) it is greater than 1800mm in height; or

(b) the local government so requires.

...

PART 3 - GENERAL

...

General Discretion of the Local Government

10. (1) Notwithstanding clause 6, the local government may consent to the erection or repair of a fence, which does not comply, with the requirements of these Local Laws.

(2) In determining whether to grant its consent to the erection or repair of any fence, the local government may consider, in addition to any other matter that it is authorized to consider, whether the erection or retention of the fence would have an adverse effect on:

(a) the safe or convenient use of any land; or

(b) the safety or convenience of any person;

(Page 26)

PART 4 - FENCING MATERIALS

Fencing Materials

11. (1) A person shall construct a fence on a Residential Lot, a Commercial Lot or an Industrial Lot from only brick, stone, concrete, wrought iron, tubular steel framed, link mesh, timber, plastic coated or galvanised link mesh, corrugated fibre reinforced cement sheeting, colorbonded metal or a material approved by the local government.

...

First Schedule Clause 6(2)(a)

SPECIFICATIONS FOR A SUFFICIENT FENCE ON A RESIDENTIAL LOT

Each of the following is a 'sufficient fence' on a Residential Lot:

A Open Aspect Fencing – Intended for use in the wooded urban areas of the City (Requires prior local government approval)-

...

B A picket timber fence which satisfies the following specifications-

...

C A fence constructed of corrugated fibre reinforced pressed cement sheeting which satisfies the following specifications-

...

D A fence constructed of brick, stone or concrete, which satisfies the following specifications-

...

E A composite fence having a minimum overall height of 1800mm except with respect to the front set back area for which there is no minimum height but which is subject to clause 7, which satisfies the following specifications for the brick construction-

...

(Page 27)

F Colorbond metal fencing systems erected in accordance with the manufacture's [sic] specifications and instructions. The height of the fence to be 1800mm except with respect to the front set back area for which there is no minimum height but which is subject to clause 7.

The appeal to this court

67 On 25 March 2011, Mr Jackson filed a notice of appeal against the orders of Wager DCJ dismissing his appeals from the orders made in the Magistrates Court on 14 October 2009 and 3 September 2010. The relevant grounds of appeal, and notice of contention, are summarised below. Mr Jackson also applied for an inspection to be undertaken, but it is unnecessary to have an inspection to determine the appeal.

Orders of 3 September 2010

68 Mr Jackson, in his first ground of appeal, contends that the judge erred in finding that the orders of 3 September 2010 were made by a registrar.

69 Mr Chrisp accepts that her Honour erred in that regard, but, nevertheless, contends by way of notice of contention, as explained in his submissions, that:

(a) the District Court should not have exercised jurisdiction because the notice of appeal had not been served within 21 days in accordance with r 51(4) of the

District Court Rules 2005

(WA) (notice of contention ground 2(a)); and

(b) Mr Jackson's grounds of appeal in the District Court did not demonstrate any error and went beyond the matters raised in his application for default judgment dated 30 August 2010, contrary to s 40(4) of the Magistrates Court (Civil Proceedings) Act (notice of contention grounds 2(b) and (c)).

70 Mr Chrisp also seeks to dismiss the appeal on the basis that the matter is a 'minor case' and contends that there is no right of appeal to this court by virtue of ss 32, 40 and 42 of the Magistrates Court (Civil Proceedings) Act (notice of contention ground 3(b)).

71 Mr Chrisp also seeks (presumably in the alternative) to dismiss the appeal under s 43(3) of the Magistrates Court (Civil Proceedings) Act on the basis that the likely costs of the appeal to the parties would be

(Page 28)

disproportionate to the amount of the claim in, or the nature of, the case the subject of the appeal (notice of contention ground 3(c)).

Orders of 14 October 2009

72 In his grounds of appeal, Mr Jackson contends, in effect, that:

(a) the judge erred in not granting an extension of time to appeal the orders of 14 October 2009 (grounds 4 and 5);

(b) the orders of 14 October 2009 were conditional and lacked clarity and could not support the making of the orders of 3 September 2010 (grounds 3 and 9);

(c) Wager DCJ incorrectly decided that the proceedings in the Magistrates Court were not a 'minor case' (grounds 2, 7 and 8);

(d) Wager DCJ made certain other errors of fact or law (grounds 10 and 11);

(e) Mr Chrisp is a vexatious litigant (ground 12); and

(f) the order of 14 October 2009 is unenforceable insofar as it refers to the retaining wall, as s 14 of the Dividing Fences Act 1961 does not apply to retaining walls (ground 6).

73 Mr Chrisp, in a notice of contention, contends that Wager DCJ's judgment should also be upheld on the basis that the orders of 14 October 2009 were 'final' orders within the meaning of s 13(6) or s 15(6) of the Dividing Fences Act, and were thereby not capable of being the subject of an appeal.

Underlying issues in the appeal

74 Underlying the appeal in respect of both matters are two fundamental issues:

(a) the proper construction and effect of the orders of 14 October 2009; and

(b) the nature and effect of the orders of 3 September 2010.

75 Both of these issues are considered below.

(Page 29)

The proper construction and effect of the orders made 14 October 2009

76 Insofar as the proceedings in the Magistrates Court involved a claim by Mr Jackson under the Dividing Fences Act, the claim appears to have been brought, and understood by the magistrate to have been brought, in connection with s 15(7)(c) of that Act. It does not appear that Mr Jackson had applied under s 15(4) for orders under s 15(5) of the Dividing Fences Act. There was nothing to indicate that Mr Jackson had given notice to Mr Chrisp requiring him to assist in repairing the dividing fence in accordance with s 15(1) and (2) of the Dividing Fences Act, or that Mr Chrisp had advised, in writing, of his objections or dispute in response in accordance with s 15(3) of the Act.

77 Moreover, it is plain that the magistrate did not consider that she was addressing an application under s 15(4) of the Act. Her orders referred to s 14 of the Act. She did not, in terms or in substance, make orders in accordance with s 15(5) of the Act. For example, the magistrate did not by order determine, for the purposes of s 15(5)(b), the kind and extent of the repairs to be effected, by whom the repairs were to be effected, and the period in which the repairs were to be effected. Had she made orders under s 15(5), she would have been required to determine, amongst other things:

(a) the extent of the retaining wall which was in need of repair, including its length and location;

(b) the kind of the repair work required for such part of the retaining wall as required repair; and

78 No such determinations were made.

79 Also, had she addressed s 15(5), the magistrate would also have considered the kind of fence in use in the locality, the purpose of separation, and the type of 'sufficient fence' prescribed under the City of Armadale's local laws referred to in [66] above: s 15(5b) of the Dividing Fences Act. This was not done.

80 The only arguable basis on which it might be contended that the magistrate had made orders under s 15(5) on 14 October 2009 is the reference in her reasons to having had 'regard to the kind and extent of repairs required as described in Mr Armenti's testimony'. However, even

(Page 30)

if she subjectively had s 15(5) in mind, that is insufficient to displace the weight of the considerations referred to above, which point to the conclusion that the orders she actually made on 14 October 2009, properly construed, were not s 15(5) orders.

81 Accordingly, I do not consider that the orders made on 14 October 2009 were made 'pursuant to' s 15(5) within the meaning of s 15(6) of the Dividing Fences Act, as contended for by Mr Chrisp.

82 By order 1, her Honour stated that the parties were to pay the repair costs in 'equal proportions'. The order stated that it was made 'pursuant to s 14' but s 14 did not authorise the magistrate to make that order.

83 Order 2 of the orders of 14 October 2009 is obscure in its meaning and effect. Insofar as the magistrate ordered that two quotations be obtained, the order lacked any sensible meaning in the absence of orders under s 15(5)(b) in relation to the kind and extent of the repairs required. Also, it is doubtful that the direction to the parties that they were to treat the lower of the two quotations as 'accepted', obliged any party to instruct the contractor to carry out the works in accordance with that quotation. Moreover, even if it could be construed as requiring one or other party to engage the contractor, her order lacked any statutory foundation.

84 Further, although order 2 of the orders of 14 October 2009 purported to require the contractor to proceed with repairs in respect of the lowest quote as soon as practicable, it could not bind the contractor, who was not a party to the proceedings.

85 Nor did s 13(6) of the Act, concerning the construction of fences in pt II of the Act, have any application.

86 The magistrate's orders of 14 October 2009 did not fall within s 18(3) of the Dividing Fences Act and were not capable of enforcement under that provision.

87 An added potential complication of these orders (and the orders of 3 September 2010), which it is unnecessary to address, is that apparently Mrs Chrisp, and not Mr Chrisp, was the registered proprietor of No 22 at the time the orders were made.

The nature and effect of the orders of 3 September 2010 (purported default judgment)

88 The orders of 3 September 2010 were initiated by purported applications for default judgment filed by Mr Jackson and Mr Chrisp

(Page 31)

respectively on 30 August 2010. Each application was by way of form 13. By r 133 of the

Magistrates Court (Civil Proceedings) Rules 2005

(WA) (the Magistrates Court Rules), the court must make available 'approved forms'. By r 4 an 'approved form' is a form approved by the Chief Magistrate. Form 13 is described as an 'application for default judgment'.

89 Applications for default judgment are addressed in pt 5 of the Magistrates Court Rules. Rule 20 of the Magistrates Court Rules provides that pt 5 applies where a defendant has not lodged a response to a claim under r 9(1) or lodged a statement of defence under r 41B. By rr 21 and 22, except under circumstances presently irrelevant, a registrar may, in the absence of the parties, give default judgment for a liquidated sum or an unspecified amount. In the latter case (r 22), the registrar must also list the application for a hearing at which the amount is to be assessed.

90 By r 25(1), if the registrar does not grant the application for default judgment, the registrar 'must refer the matter to the Court'. Rule 25(2) provides that in that event, the 'Court may determine the application in the absence of the parties or may list the application for hearing'. By r 25(3), if the Court lists the matter for hearing, it must notify the parties in writing at least 28 days before the hearing.

91 The letter from the Magistrates Court dated 25 March 2011 may suggest that following the respective applications for default judgment filed on 30 August 2010, the registrar purportedly referred the matter to Magistrate Langdon pursuant to r 25(1) and Magistrate Langdon determined the applications under r 25(2) of the Magistrates Court Rules, in the absence of the parties.

92 However, pt 5 of the Magistrates Court Rules had no application, as neither of the criteria in r 20 applied. There was no procedural basis under the Magistrates Court Rules to enter judgment against Mr Jackson on 3 September 2010 without hearing him.

93 It is convenient to note here that in the course of his submissions, counsel for Mr Chrisp contended that order 1 of the orders on 3 September 2010 was made under s 13(1)(b) of the Civil Judgments Enforcement Act 2004 (WA).

94 Section 13(1)(b) and s 13(2) of that Act provide:

(Page 32)

13. Court’s leave to enforce needed in some cases

(1) Leave of the court must be obtained before an order may be made under this Act to enforce a judgment -

...

(b) if the order in the judgment that a person seeks to enforce is subject to the fulfilment of a condition;

...

(2) On an application for leave under subsection (1), the court -

(a) may give leave if it is satisfied that the person seeking to enforce the judgment is entitled to do so and that the person against whom the order is sought is liable to satisfy the judgment;

(b) may order the trial of any issue that needs to be decided in order to determine if the judgment may be enforced and, if it may be enforced, by whom and against whom; and

95 Under s 3 of the Civil Judgments Enforcement Act 2004:

judgment

means -

(a) a monetary judgment; or

(b) a judgment or an order of a court that requires or has the effect of requiring a person -

(i) to give possession of any property to another person; or

(ii) to do an act, to not do an act, or to cease doing an act;

96 The term 'monetary judgment' is defined in s 3 to mean:

monetary judgment

means a judgment or an order of a court that requires or has the effect of requiring a person to pay money, whether or not the judgment or order contains any other requirements;

97 It is unnecessary to decide for present purpose whether the orders of 14 October 2009 could be described as a 'judgment', for the purposes of s 13(1)(b) of the Civil Judgments Enforcement Act. Even if it were, there are a number of reasons why Mr Chrisp's submissions on this point must be rejected.

(Page 33)

98 Mr Chrisp had not applied under s 13(1)(b) to enforce 'a judgment'. He had, in terms, applied to obtain a 'default judgment'. Whilst there was no proper procedural basis for that, his application of 30 August 2010 was, nevertheless, not to enforce an existing judgment. Nor was par 1 of the orders of 3 September 2010 expressed as the grant of leave to enforce a judgment, and no reference was made in par 1 of the orders of 3 September 2010 to s 13(1)(b) of the Civil Judgments Enforcement Act. Whilst the general heading in those orders referred to the Civil Judgments Enforcement Act, it is to be inferred that the heading related to order 2 of the orders of 3 September 2010, which referred in terms to the Civil Judgments Enforcement Act. (Although order 2 of the orders of 3 September 2010 is equally obscure, it has no present relevance.)

99 Further, even if order 1 of the orders of 3 September 2010 was purportedly made under s 13(1)(b) of the Civil Judgments Enforcement Act, it could not properly have been made in Mr Jackson's absence and without hearing him. Mr Chrisp's counsel submitted that the magistrate was not required to hear Mr Jackson before making orders against him under s 13(1)(b). Counsel, in response to questions from the bench, could not point to any provision in the Civil Judgments Enforcement Act which would have permitted that course, although, arguably, perhaps s 13(2)(a) contains that power. However, even if the court had power to make orders against Mr Jackson without hearing him, it was clearly an improper exercise of power in this case. Mr Jackson had raised arguments about whether the quotations satisfied the second of the orders made on 14 October 2009, both as to the independence of the quotes and the scope of the work, and those matters could not have been decided, without a hearing, in his absence.

100 The injustice of the denial of procedural fairness is magnified when it is recognised, as Mr Chrisp in effect concedes, that order 2 of the orders of 14 October 2009 had not been complied with in two respects - the quotations were not obtained within 30 days, and one was not independent.

Disposition of the appeal - orders 3 September 2010

101 In my view, the appeal with respect to the magistrate's orders of 3 September 2010 should be allowed. The judge erred in finding that the orders were the orders of a registrar. It was not contended by Mr Chrisp, nor could it have been, that the orders of 3 September 2010 were orders made 'pursuant to' s 15(5) and thereby final under s 15(6).

(Page 34)

102 The notice of contention cannot succeed with respect to the orders of 3 September 2010, for the reasons given below.

103 The notice of appeal was, on the material before this court, filed on 24 September 2010, which is within 21 days of 3 September 2010. Accordingly, the appeal was commenced in accordance with s 40(3)(a) of the Magistrates Court (Civil Proceedings) Act. Mr Chrisp did not contend otherwise in this appeal. Mr Chrisp's complaint, as outlined in argument in the appeal, was that the procedural step of service within 21 days under r 51(4) of the District Court Rules had not been complied with. (There is a detailed outline of the rules in [117] - [119] below.) The undisputed facts are that Mr Jackson had attempted to serve it within time, but Mr Chrisp was not at home. Mr Jackson subsequently ascertained Mr Chrisp's new address, and served him at that address. The total delay in service was 10 days. The appeal was conducted before Wager DCJ without any objection by Mr Chrisp as to the lateness of service. The late service was an irregularity and did not nullify the appeal: Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 57; (2007) 35 WAR 412 [48]; Gauci v Briffa [2011] WASCA 20 [16]. However, out of an abundance of caution, Mr Jackson applied to this court for an order formally to extend the time for service of the notice of appeal in appeal 73 of 2010 of the District Court. In the circumstances referred to above, and as the appeal plainly had merit, that application should be allowed.

104 The next matter raised in the notice of contention is, in effect, that Mr Jackson's grounds of appeal did not demonstrate error and went beyond the material in his application for 'default judgment' on 30 August 2010. This submission cannot be accepted. Each party had, misguidedly, filed an application for 'default judgment'. However misguided that may have been, it did not provide any occasion for the magistrate to enter judgment against Mr Jackson, on Mr Chrisp's application, without first hearing Mr Jackson. An essential component of Mr Jackson's complaint in the notice of appeal before Wager DCJ was that he had been denied natural justice. He had been. This point in the notice of contention has no merit.

105 The contention that there is no appeal to this court because the matter was a 'minor case' must be rejected for two reasons. The first is that the proceedings before Magistrate Langdon were not a 'minor case' (and Mr Jackson was also in error in thinking that they were). The second is that, in any event, the Magistrates Court (Civil Proceedings) Act permits an appeal from a 'minor case'.

(Page 35)

106 A 'minor case' is defined in s 26 of the Magistrates Court (Civil Proceedings) Act as follows:

minor case

means -

(a) a claim within the jurisdiction of the Court where -

(i) the value of the claim or of the relief claimed is not more than the minor cases jurisdictional limit; and

(ii) the claimant has elected to have the claim dealt with under the minor cases procedure;

(b) a matter within the jurisdiction of the Court referred to in section 8 that is declared to be a minor case for the purposes of this Act by the written law that confers jurisdiction on the Court to deal with the matter; or

(c) any other claim within the jurisdiction of the Court (including a claim within the jurisdiction of the Court by virtue of a consent given under section 6(1)(f)) that the parties agree is to be treated as a minor case.

107 There is no evidence that the criteria in s 26(a)(ii) or (c) applied, and, in relation to s 26(b), the Dividing Fences Act did not declare the claim to be a 'minor case'. The tentative remarks of the magistrate at the first directions hearing on 3 June 2009 did not bring the proceedings within the statutory definition.

108 Further, an appeal to this court lies under s 42 of the Magistrates Court (Civil Proceedings) Act from any appeal to the District Court under s 40, which includes an appeal in respect of a 'minor case'. (There is a detailed outline of the provisions in [113] - [114] below.) The relevant difference between an appeal with respect to a 'minor case' and other appeals is that a 'minor case' appeal is governed by s 32 which, by s 32(3), in effect, confines the grounds of appeal to jurisdictional and natural justice issues.

109 Finally, Mr Chrisp contends that this court should exercise the discretion conferred on it under s 43(3) of the Magistrates Court (Civil Proceedings) Act by peremptorily dismissing the appeal. That submission should be rejected, particularly in light of the serious breach of natural justice which has occurred.

(Page 36)

Disposition of the appeal - orders of 14 October 2009

110 For the reasons given in [76] - [81] above, the orders of 14 October 2009 were not made 'pursuant to' s 15(5) of the Dividing Fences Act, and an appeal therefrom is not precluded by s 15(6). However, I accept Mr Chrisp's submission that the appeal was incompetent in relation to those orders for the reasons outlined below.

The appeal's competency and the question of the power to extend time

111 The notice of appeal in Appeal No 74 of 2010 in the District Court was filed approximately 11 months after the orders of 14 October 2009 were made.

112 There are threshold questions as to whether the appeal to the District Court was incompetent by virtue of it not having been commenced within 21 days, in accordance with s 40(3)(a) of the Magistrates Court (Civil Proceedings) Act, and whether the District Court had power to extend time for the commencement of the appeal.

The Magistrates Court (Civil Proceedings) Act 2004

113 Section 40 of the Magistrates Court (Civil Proceedings)Act provides:

40. Appeal from Magistrates Court to District Court

(1) A party to a case that is not a minor case may appeal to the District Court against -

(a) any order made by the Magistrates Court in the course of proceedings in the case; or

(b) the judgment of the Magistrates Court in the case.

(2) An appeal against the judgment of the Magistrates Court in a case that is a minor case is subject to section 32.

(3) The appeal must -

(a) be commenced within 21 days after the date of judgment; and

(b) be conducted in accordance with rules of court made by the District Court.

(4) The District Court must decide the appeal on -

(a) the material and evidence that were before the Magistrates Court; and

(Page 37)

(b) any other evidence that it gives leave to be admitted.

(5) Leave may only be given under subsection (4)(b) in exceptional circumstances.

(6) Subsection (4) does not prevent the District Court from dealing with an appeal against a decision of the Magistrates Court to admit or refuse to admit any evidence.

114 Section 42 of the same Act provides:

42. Appeal from District Court to Court of Appeal

(1) A party to an appeal made to the District Court under section 40 may appeal to the Court of Appeal against the District Court’s judgment on the appeal.

(2) The appeal must -

(a) be commenced within 21 days after the date of the District Court’s judgment; and

(b) be conducted in accordance with rules of court made by the Supreme Court.

(3) The Court of Appeal must decide the appeal on -

(a) the material and evidence that were before the Magistrates Court; and

(b) the material that was before the District Court and any other evidence that the District Court admitted; and

(4) Leave may only be given under subsection (3)(c) in exceptional circumstances.

(5) Subsection (3) does not prevent the Court of Appeal from dealing with an appeal against a decision of the District Court to admit or refuse to admit any evidence.

The District Court of Western Australia Act 1969 (WA)

115 Section 6 of the District Court of Western Australia Act 1969 (District Court Act) provides:

(Page 38)

6. Terms used in this Act

...

matter

means a proceeding in the Court that is commenced otherwise than by writ;

...

practice and procedure includes matters relating to costs, the method of pleading, the institution, conduct, trial or hearing and adjudication in any proceeding, the attendance of witnesses, the custody on bail of accused or convicted persons and the enforcement and execution of judgments and all the jurisdiction and powers conferred and the matters prescribed, provided for, or regulated by the rules of court;

116 Sections 87 and 88 of the District Court Act provide as follows:

87. Rules of court to govern practice and procedure

(1) Subject to this Act, the practice and procedure of the Court shall be governed by the rules of court, and until provision is made by rules of court or where no special provision is contained in the rules of court, the rules of court of the Supreme Court for the time being in force, so far as applicable, apply to the Court.

(2) A reference in any other provision of this Act to rules of court shall, unless the context otherwise requires, be read as including a reference to the rules of the Supreme Court as applied by this section.

88. Rules of court, making, content

(1) The District Court judges, for the time being, or a majority of them, may make rules, not inconsistent with this Act -

(a) regulating and prescribing the practice and procedure, including the method of pleading, to be followed in the Court (including the practice and procedure to be followed in the offices of the Court);

(b) regulating and prescribing all matters and things incidental or relating to any such practice and procedure (including the manner in which and the time within which, any applications that under this Act or any other Act are to be made to the Court, shall be made) or necessary or convenient to be prescribed for the conduct of any business of the Court ...

(Page 39)

(2) In particular the rules of court may provide -

(a) for regulating the sittings of the Court, and of the judges thereof whether sitting in Court or in chambers;

(b) for regulating any matters relating to the costs of proceedings in the Court fixed by costs determination (as defined in the Legal Profession Act 2008 section 252);

(c) for regulating the means by which particular facts may be proved, and the mode in which evidence thereof may be given, in any proceedings, or on any application in connection with, or at any stage of, any proceedings;

(d) for the service and execution of the process of the Court including the manner in which and the extent to which the process of the Court may be served out of the jurisdiction of the Court;

[(e), (f) deleted]

(g) for a registrar or any particular registrar to have power, either generally or in particular cases and under such conditions as are prescribed, to do such things, to transact such business, and to exercise such authority and jurisdiction as a judge of the Court sitting in chambers may, by virtue of a statute, custom, or rule or practice of the Court, do, transact, or exercise, and to tax costs;

(h) for requiring and regulating pre-trial conferences in actions;

(i) for regulating the practice and procedure in relation to applications under the Vexatious Proceedings Restriction Act 2002.

The District Court Rules

117 In September 2010, when Mr Jackson filed his notice of appeal in the District Court, the District Court Rules 2005 (WA) included the following provisions:

3. Interpretation

file a document, means to file it at the relevant registry together with any fee required to be paid under the District Court (Fees) Regulations 2002;

file and serve has the meaning given by rule 4;

...

(Page 40)

4. 'File and serve', meaning of

If these rules require a person to file and serve a document, then unless these rules expressly provide otherwise, the person must -

(a) file the document within any time limit for doing so; and

(b) after filing the document, serve it on the other party or parties within 5 working days after the date on which it is filed.

...

6. Application of Rules of the Supreme Court 1971

(1) The RSC apply to and in respect of any case in the Court.

(2) For the purposes of subrule (1) -

(a) a reference in the RSC to 'the Court' is to be taken as being a reference to the District Court, unless the context requires otherwise; and

(b) a reference in the RSC to the RSC (whether 'these Rules' or other words are used) is to be taken as including a reference to these rules, unless the context requires otherwise.

(3) If there is a conflict or inconsistency between these rules and the RSC, these rules prevail.

118 Part 6 dealt with appeals to the District Court. Rules 49, 50 and 51 provided:

49. Interpretation

In this Part, unless the contrary intention appears -

appealable decisionmeans an award, a determination, a finding, a judgment or any other decision, that by virtue of a written law may be the subject of an appeal to the Court but not a decision of a Registrar;

primary courtin relation to an appealable decision, means the court, tribunal, person or body that made the decision.

50. Appeal, nature of

(1) An appeal to the Court must be by way of a reconsideration of the evidence that was before the primary court unless the parties agree otherwise.

(Page 41)

(2) At the hearing of an appeal a party must not adduce evidence that was not adduced in the primary court except with the leave of the Court.

(3) The Court is not to grant such leave unless satisfied there are special grounds for doing so.

(4) This rule is subject to the written law that provides for the appeal to made to the Court.

51. Appeal, commencement of

(1) An appeal to the Court against an appealable decision must be commenced by filing a notice of appeal at the registry nearest to where the appealable decision was given.

(2) A notice of appeal must -

(a) identify the primary court and the action or matter or proceedings in which the appealable decision was given;

(b) except in the case of an appeal made under the Magistrates Court (Civil Proceedings) Act 2004, identify the written law under which the appeal is made;

(d) state the grounds of appeal;

(e) set out the final orders that it is proposed the Court should make on the appeal; and

(f) include an address for service of the appellant in Australia.

(3) The grounds of appeal in a notice of appeal must not merely allege that an appealable decision is against the weight of the evidence or that it is wrong in law, they must specify the particulars relied on to demonstrate that the decision is against the weight of the evidence and the specific reasons why it is wrong in law.

(4) A notice of appeal must be filed and served within 21 days after the date of the appealable decision.

(5) When filing a notice of appeal the appellant must pay the Court $100 as security for the costs of being unsuccessful.

119 The words 'must be filed and served' in r 51(4) exclude the operation of r 4 in relation to the filing and serving of a notice of appeal.

(Page 42)

Rules of the Supreme Court1971 (WA)

120 Order 3 r 5 of the Rules of the Supreme Court1971 (WA) provides:

5. Extending and abridging time

(1) The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these rules, or by any judgment, order, or direction, to do any act in any proceedings.

(2) The Court may extend any such period as is referred to in subrule (1) although the application for extension is not made until after the expiration of that period.

(3) The period within which a person is required by these rules, or by any order or direction, to serve, file or amend any pleading or other document may be extended by consent (given in writing) without an order of the Court being made for that purpose.

121 By virtue of r 6(1) and r 6(2)(b) of the District Court Rules, the words 'these rules' in O 3 r 5 are taken to include, unless the context otherwise requires, the District Court Rules.

Disposition

122 In substance, this aspect of the appeal raises two questions. The first is what is the meaning of the word 'commenced' in s 40(3)(a) of the Magistrates Court (Civil Proceedings) Act? The second is whether there is any power in the District Court to extend the stipulated 21-day time limit referred to in s 40(3)(a) of the Magistrates Court (Civil Proceedings) Act.

123 At the outset, it should be noted that a right of appeal is a substantive right and is not merely a matter of procedure: The Colonial Sugar Refining Co Ltd v Irving [1905] AC 369, 372, per Lord Macnaghten speaking for the Judicial Committee; Worrall v The Commercial Banking Co of Sydney Ltd [1917] HCA 67; (1917) 24 CLR 28, 31; The Australian Coal and Shale Employees Federation v Aberfield Coal Mining Co Ltd [1942] HCA 23; (1942) 66 CLR 161, 175, 178, 185, 194; The Minister for Home & Territories v Smith [1924] HCA 41; (1924) 35 CLR 120. There is no provision in the Magistrates Court (Civil Proceedings) Act, or the District Court Act, which empowers the District Court to extend the time provided by s 40(3)(a) of the Magistrates Court (Civil Proceedings) Act for the commencement of an appeal to the District Court.

(Page 43)

124 As to the first question, the word 'commence', in its ordinary signification, means 'begin' or 'initiate'. An appeal is 'commenced' for the purposes of s 40(3)(a) if the appeal is initiated in the District Court. That involves a consideration of the District Court Act and the District Court Rules.

125 Section 88 of the District Court Act, to which s 87 is subject, provides that the District Court judges may make rules, not inconsistent with the District Court Act, dealing with the matters there enumerated.

126 The effect of r 51(1), read with sub-rules (2) and (3), is that an appeal is commenced in the District Court by the filing of a notice of appeal. Rule 51(1) does not require service, in addition to filing the notice of appeal, before the appeal can be said to have been commenced. It follows that an appeal to the District Court is commenced within 21 days for the purposes of s 40(3)(a) of the Magistrates Court (Civil Proceedings) Act if a notice of appeal is filed in the District Court within that period. That position may be contrasted with r 27 of the Supreme Court (Court of Appeal) Rules 2005 (WA) - which provide that an 'appeal is not commenced until an appeal notice ... has been both filed and served'.

127 Once such an appeal has been commenced, the appeal must be 'conducted' in accordance with the District Court Rules: s 40(3)(b) of the Magistrates Court (Civil Proceedings) Act. Rule 51(4) of the District Court Rules requires a notice of appeal to be filed and served within 21 days after the date of the appellable decision. That provision, by virtue of r 6 of the District Court Rules, is, to the extent referred to below, a provision amenable to extensions of time under O 3 r 5 of the Rules of the Supreme Court. However, an extension of time under O 3 r 5(1) could only operate upon a time limit 'required or authorised' by (relevantly) the District Court Rules. It could not operate upon a time limit mandated by the statute which confers the right of appeal. Accordingly, its practical effect, for present purposes, is to allow an extension of the time prescribed by r 51(4) for service of the notice of appeal within 21 days. It could not operate to, in effect, amend s 40(3)(a) by permitting appeals to the District Court to be commenced outside of the statutory time period.

128 The above analysis finds support in the reasoning of the New South Wales Court of Appeal in Patterson and James v Public Service Board of New South Wales [1984] 1 NSWLR 237 at 239 - 240. It leads to the conclusion that the District Court does not have the power to extend the time within which a party may appeal from the Magistrates Court to the District Court under s 40 of the Magistrates Court (Civil Proceedings)

(Page 44)

Act

. Decisions of the District Court to the contrary effect are, in my respectful view, incorrectly decided.

129 For these reasons, the appeal against the magistrate's reasons of 14 October 2009 was incompetent and Wager DCJ was correct so to find. That is sufficient for dismissing Mr Jackson's appeal to this court.

130 Although the appeal with respect to the orders of 14 October 2009 should be dismissed, it is appropriate to make the following further observations. The first of those orders was, in effect, made without legislative authority and would, prima facie, be amenable to judicial review on the basis of error of law on the face of the record or on the basis of being made without jurisdiction. The second order is dependent on the first. Moreover the orders of 14 October 2009 are, in practical terms, spent as they purport to relate to the circumstances existing with respect to the fence as at 14 October 2009, and it appears that there have been changes to the state of the fencing since then. If Mr Chrisp attempted to enforce those orders it would, prima facie, be open to Mr Jackson to apply to set them aside in proceedings for judicial review pursuant to s 36 of the Magistrates Court Act. In practical terms, any subsisting dispute over repairs to the dividing fence will need to be the subject of fresh proceedings, unless commonsense prevails and an appropriate agreement is reached. In any future proceedings, the parties should pay careful attention to the precise provisions of the Dividing Fences Act which they wish to invoke and comply with those provisions; they should identify precisely the orders sought; they should adduce proper evidence relevant to the orders sought; and they should also ensure that the proper parties are joined.

131 It is unnecessary to deal with the other matters raised in the appeal, or notice of contention, save to say that Mr Jackson's ground 12, to the effect that Mr Chrisp is a 'vexatious litigant' is misconceived and lacks a proper basis.

Conclusion

132 The appeal with respect to District Court Appeal No 73 of 2010 should be allowed.

133 As to final orders, subject to hearing further from the parties, in District Court Appeal No 73 of 2010, the orders of Wager DCJ, made 4 March 2011, should be set aside and substituted therefor should be the following orders:

(Page 45)

1. The appeal be and is hereby upheld.

2. The orders of the Magistrates Court at Armadale on 3 September 2010 be set aside.

3. The respondent pay the reasonable disbursements of the appellant to be taxed if not agreed.

134 The appeal with respect to District Court Appeal No 74 of 2010 should be dismissed.

135 The parties should be heard on the question of the costs of the appeal to this court. Again, subject to hearing from the parties, an appropriate order may be no order as to costs.