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Jackson v Chrisp

Jackson v Chrisp

Case [2012] WASCA 158 20 August 2012

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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

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Jackson v Chrisp

Details

AGLC: Jackson v Chrisp [2012] WASCA 158
Case: [2012] WASCA 158
Decision Date

CaseChat Overview and Summary

The case of Jackson v Chrisp involved an appeal against orders made by the Magistrates Court in relation to a dispute between neighbours over the repair of a dividing fence and retaining wall. The Court of Appeal dismissed the appeal in respect of one set of orders, but allowed the appeal in respect of another. The appeal related to two sets of orders made by the Magistrates Court. The first set of orders (the "orders of 14 October 2009") were made at the conclusion of a hearing in which the parties appeared and gave evidence. The second set of orders (the "orders of 3 September 2010") were made following the lodgement of applications for "default judgment" by both parties. The appeal to the District Court was dismissed, but the appeal to the Court of Appeal was allowed in respect of the "orders of 3 September 2010". The Court found that the "orders of 3 September 2010" were made without jurisdiction and in breach of procedural fairness. The Court found that the appeal in respect of the "orders of 14 October 2009" was incompetent because it was not made within the 21-day period required by statute. The Court also found that the District Court did not have the power to extend the time within which an appeal could be commenced.

Orders