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Jackson v Chrisp

Jackson v Chrisp

Case [2013] WASC 380 22 October 2013

Jurisdiction

Abuse of Process

Dividing Fences Act 1961 (WA)

Civil Litigation & Procedure

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: JACKSON -v- CHRISP [2013] WASC 380

CORAM: ALLANSON J

HEARD: 14 OCTOBER 2013

DELIVERED : 22 OCTOBER 2013

FILE NO/S: CIV 1641 of 2013

BETWEEN :GEORGE NEVILLE JACKSON
Applicant
AND
DANIEL LEE CHRISP
Respondent

Catchwords:

Magistrates Court - Review order - Section 36 Magistrates Court Act 2004 (WA) - Dividing Fences Act 1961 (WA) - Application to set aside orders made without jurisdiction

Legislation:

Dividing Fences Act 1961 (WA)
Local Government Act 1995 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 40
Magistrates Court Act 2004 (WA), s 36
Rules of the Supreme Court 1971 (WA), O 56A

Result:

Orders made in Magistrates Court set aside

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: Mr B Wheatley

Solicitors:

Applicant: In person
Respondent: Mossensons

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

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Ex parte Hebburn Ltd.; Re Kearsley Shire Council (1947) 47 SR (NSW) 416
Jackson v Chrisp [2011] WADC 38
Jackson v Chrisp [2012] WASCA 158
Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531
R v Brisbane City Council, ex parte Read [1986] 2 Qd R 22
R v Chief Constable of Merseyside Police; Ex parte Calveley [1986] QB 424
Rayney v AW [2009] WASCA 203
Re an Application under the Magistrates Court Act 2004; Ex Parte Brecker [2007] WASC 151
Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501
Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549
Re Magistrate Black; Ex Parte Sadler [2010] WASC 222
Re McBain; ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372
Schaefer v Department of Housing [No 2] [2012] WASCA 229

ALLANSON J: The applicant, George Neville Jackson, applies under s 36 of the Magistrates Court Act 2004 (WA) to set aside orders made by the Magistrates Court in Armadale on 14 October 2009. Those orders required Mr Jackson and Mr Daniel Chrisp to pay in equal proportions for the repair or construction of a fence dividing their properties.
For the reasons which follow, I am satisfied that the orders were made without jurisdiction and should be set aside. Mr Jackson seeks quite extensive further relief. I am satisfied, however, that the only appropriate relief is to set aside the orders of the magistrate.

Background

Mr Jackson and his wife live at 20 Heather Road, Roleystone. The adjoining property at 22 Heather Road was owned by Mr Chrisp, either alone or jointly with his wife. A fence divided the two properties, and part of it stood on a retaining wall.
On 13 May 2009, Mr Jackson lodged an application in the Magistrates Court seeking orders requiring Mr Chrisp to:
(a)clean all the rubble which had fallen onto his driveway from around the retaining wall;
(b)repair damage to the retaining wall; and
(c)repair…

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 [2013] WASC 380
Case: [2013] WASC 380
Decision Date: 22 OCTOBER 2013

CaseChat Overview and Summary

Jackson and Chrisp were involved in a dispute regarding the maintenance of a fence between their adjacent properties. The matter was heard by the Magistrates Court of Western Australia. Jackson had applied to the court for an order to compel Chrisp to repair a section of the fence that had fallen into disrepair. Chrisp contested the application on the basis that the court lacked jurisdiction to make the order, arguing that the fence was not a "dividing fence" as defined by the Dividing Fences Act 1961 (WA), and therefore, the Magistrates Court did not have the authority to hear the matter. The court needed to determine whether it had jurisdiction to make an order compelling Chrisp to repair the fence.

The court considered the definition of a "dividing fence" under the Dividing Fences Act 1961 (WA) and concluded that the fence in question did not meet the statutory criteria for a dividing fence. As a result, the Magistrates Court did not have jurisdiction to compel Chrisp to repair the fence. The court found that the orders made by the Registrar were invalid because they were made without jurisdiction. Consequently, the application to set aside the orders was successful. The court ordered that the orders made by the Registrar be set aside and quashed.

In summary, the Magistrates Court of Western Australia quashed the orders made by the Registrar, finding that the court did not have jurisdiction to compel Chrisp to repair the fence as it did not meet the statutory definition of a dividing fence under the Dividing Fences Act 1961 (WA). The court's decision underscores the importance of ensuring that the statutory criteria for a dividing fence are met before seeking enforcement orders from the Magistrates Court.

Orders