Jackson v Chrisp - [2013] WASC 380

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 damage to the dividing fence.
Mr Jackson said that the retaining wall had fallen into disrepair, and the fence had been damaged by a tree which fell from Mr Chrisp's property. Mr Jackson's application was stated to be under the Dividing Fences Act 1961 (WA) and the Local Government Act 1995 (WA) ‑ 'City of Armadale local laws relating to fencing'.
In July 2009, 22 Heather Road was transferred solely into the name of Mrs Chrisp. Mr Chrisp, however, continued to act in proceedings as if he was the owner.
Mr Jackson's application was set down for a hearing in the Magistrates Court on 14 October 2009. Following the hearing, Magistrate Langdon made the following orders:
1.Pursuant to s 14 Dividing Fences Act 1961, the Claimant [Mr Jackson] and the Defendant [Mr Chrisp] are to pay in equal proportions the repair or construction of the fence, including the retaining wall dividing their properties.
2.[Mr Chrisp] is to, in not less than 30 days, obtain two independent 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.
On 8 December 2009 Mr and Mrs Chrisp wrote to Mr and Mrs Jackson enclosing two quotes. The neighbours did not agree. The matter went back to the Magistrates Court, initially on an application by Mr Chrisp to enforce the orders made on 14 October 2009. After two hearings before another magistrate, the application was referred back to Magistrate Langdon. There was a hearing before Magistrate Langdon on 19 August 2010. On 30 August, competing 'default judgment' applications were filed by Mr Jackson and Mr Chrisp. On 3 September 2010, the magistrate ordered:
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 s 13(1)(b) of the Civil Judgments Enforcement Act 2004.
On 24 September 2010, Mr Jackson filed two notices of appeal in the District Court:
1.APP 73 of 2010 related to the order of 3 September 2010;
2.APP 74 of 2010 related to the order on 14 October 2009.
The District Court (Wager DCJ) heard the appeals on 4 March 2011. Her Honour dismissed both appeals and ordered that Mr Jackson pay Mr Chrisp's costs of the appeals, including reserved costs. Relevantly, her Honour held that the appeal in APP 74 of 2010, in relation to the orders of 14 October 2009, was incompetent as it was not commenced within the time prescribed by s 40 of the Magistrates Court (Civil Proceedings) Act 2004 (WA). She also stated that she would have dismissed the appeal in any event: Jackson v Chrisp [2011] WADC 38 [53].
Mr Jackson appealed from the decisions of Wager DCJ to the Court of Appeal. The court upheld her Honour's decision that the appeal against the orders made on 14 October 2009 was out of time and incompetent. The appeal from the orders made on 3 September 2010, however, was upheld: Jackson v Chrisp [2012] WASCA 158. The order requiring Mr Jackson to pay Mr Chrisp the sum of money for the repair of the dividing fence was set aside. Orders requiring Mr Jackson to pay the costs of his unsuccessful appeal to the District Court against the orders made on 14 October 2009, and other costs orders in the District Court arising out of applications to prevent the enforcement of the judgment, remain.
While the Court of Appeal dismissed the appeal in relation to the orders made on 14 October 2009, Murphy JA expressed the view in his reasons for decision that those orders had been made without authority and would, prima facie, be amenable to judicial review: Jackson v Chrisp [2012] WASCA 158 [130].
Mr Chrisp has not attempted to enforce the orders made on 14 October 2009. On 26 April 2013, through his solicitors, he wrote to Mr Jackson, referring to par 130 of the appeal decision, and confirming that he did not intend to enforce them.

The review order

On 22 April 2013 Mr Jackson commenced these proceedings under s 36 of the Magistrates Court Act. On 2 May 2013, McKechnie J ordered that a review order issue in respect of the decision made by her Honour Magistrate Langdon pursuant to the Dividing Fences Act, dated 14 October 2009, on the grounds that:
the applicant is aggrieved by the orders dated 14 October 2009, and continues to be aggrieved by such orders, as such orders were made without jurisdiction, and without legislative authority and are an abuse of process, perpetrated by Mr Chrisp, and Magistrate Langdon had failed to appreciate the true nature of the claim before her, by not applying common law.
By s 36(1), the review order requires any person who will be affected by the order dated 14 October 2009, to satisfy the Supreme Court the order of the magistrate should not be set aside. Mr Chrisp was served with the review order, and appeared by counsel to oppose a final order being made.

The nature of the proceedings

Review proceedings under s 36 of the Magistrates Court Actare not an appeal by way of rehearing. The power of the court conferred by s 36 is a judicial review power: see Rayney v AW [2009] WASCA 203 [27]; Schaefer v Department of Housing [No 2] [2012] WASCA 229 [36].
Setting out the operation of s 36 involves an awkward double negative. Under s 36(4), if the court is not satisfied in accordance with the review order (that is, the court is not satisfied that the orders challenged should not be set aside), or if it is just to do so, the court may: order that the order challenged be set aside; grant any relief that could have been granted by way of a writ of mandamus, prohibition or certiorari; and make any necessary consequential orders.
In his application, Mr Jackson asks the court to make a range of orders considerably beyond those set out in s 36(4). These include orders relating to the repair of the dividing fence, and payment for the repair of a section of retaining wall; an order requiring the owner of 22 Heather Road to comply with the requirements of Building Design Codes regarding retaining walls; and that the court 'reinstates the owner's responsibility for maintaining their retaining wall'. Mr Jackson also asks the court to set aside or cancel all costs orders regarding the related District Court hearings, and order that Mr Chrisp pay his reasonable costs from the commencement of this matter in May 2009. None of these additional orders is consequential upon setting aside the orders of 14 October 2009, or making an order in the nature of mandamus, prohibition or certiorari: see Rayney v AW [33]. They do not fall within the orders that I may make under s 36.
There is a further alternative in s 36(5), to remit the matter to the District Court to be dealt with as if it were an appeal under the Magistrates Court (Civil Proceedings) Act 2004. Mr Jackson urged that course on me, but I do not consider it is open. The power to remit arises if the court considers that an appeal lies. In the present case, because there has already been an unsuccessful appeal to the District Court, I do not consider that an appeal lies. The statutory right of appeal is exhausted.

Were the orders of 14 October 2009 within power?

I am satisfied that the orders of the magistrate were outside her power. In the reasons of the Court of Appeal, Murphy JA (Pullin JA and Newnes JA agreeing) set out in some detail why that is so: see Jackson v Chrisp [2012] WASCA 158 [47] - [57], [76] ‑ [87], and [130]. Counsel for Mr Chrisp characterised those passages in the reasons of Murphy JA as obiter comments, and not binding on me. Even if that were so, I agree entirely with Murphy JA's conclusion and his reasons for arriving at it.
The real issue on the present application is whether I should decline to set the orders aside.

Discretionary considerations

The Court of Appeal in Schaefer v Department of Housing [No 2] [38] ‑ [39] accepted that relief under s 36(4) is discretionary: see also Re an Application under the Magistrates Court Act 2004; Ex Parte Brecker [2007] WASC 151 [49]; Re Magistrate Black; Ex Parte Sadler[2010] WASC 222. Counsel for Mr Chrisp put forward several reasons for why the court should exercise its discretion against granting relief:
1.The application lacks utility.
2.Mr Jackson elected to pursue an appeal, rather than review. Wager DCJ dismissed his appeal for failure to comply with prescribed time limits and the Court of Appeal upheld that decision. The review process should not be used to avoid the time limits on instituting an appeal.
3.The breadth of the relief Mr Jackson seeks.
4.The delay in bringing this application, and prejudice to Mr Chrisp.
The nature of the power conferred by s 36 ‑ including the power to grant any relief that could have been granted by way of a writ of mandamus, prohibition or certiorari ‑ suggests that the discretion in s 36(4) should be exercised on similar principles to those which govern the grant or refusal of prerogative relief. The factors referred to by counsel for Mr Chrisp are all relevant.
I accept that setting aside the orders made by the magistrate may not confer a practical benefit on Mr Jackson when there is no application by Mr Chrisp to enforce them; when the orders are, in effect, spent due to changes in circumstances since they were made; and when Mr Chrisp has given a written undertaking that he will not enforce them. The orders which cause him real concern are costs orders made in the District Court. The costs orders arise out of quite distinct appeal proceedings instituted by Mr Jackson in the District Court. They are not subject to review under s 36, and do not fall away if the court sets aside the orders of the magistrate.
I am satisfied, however, that the orders made by the magistrate have no legal effect. They are not merely affected by error of law, but made outside jurisdiction.
Mr Jackson's application to the Magistrates Court relied upon s 15(7) Dividing Fences Act. Section 15(7)(c) is one of the exceptions to the general rule in s 14 that the owners on each side of a fence are liable to contribute in equal proportions to its repair. An order for the parties to pay the cost of repair or construction of the fence and retaining wall in equal proportions is not an order that can be made under s 15(7). And, for the reasons set out by Murphy JA in Jackson v Chrisp, in particular at [50] ‑ [51], the orders made by the magistrate were not of the kind that could be made within the authority given by s 15(5), in conjunction with s 14.
The magistrate misunderstood the question which s 15 invested her with jurisdiction to decide. This is not merely an error of law. The decision given 'will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised': Ex parte Hebburn Ltd.; Re Kearsley Shire Council (1947) 47 SR (NSW) 416, 420. Jurisdictional error of this kind can be made by an inferior court as well as administrative decision makers: Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531 [72]. See also Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [31]. An order made without jurisdiction is, as a general rule, of no legal effect: see Re McBain; ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 [80], [284].
On their face, the orders made in 2009 impose a financial obligation on Mr Jackson once the conditions in the orders have been satisfied. But because of the jurisdictional error, the rights and liabilities of Mr Jackson and Mr Chrisp are not, and never have been, as described in those orders. The lack of practical benefit is not, in my opinion, enough to outweigh the reasons for setting them aside. Unless there is some reason to decline to act, I consider that it would be a strange result were the court, on two occasions now, to acknowledge that these orders are of no legal effect but leave them in place.
Next, Mr Chrisp submits that Mr Jackson elected to pursue the remedy of appeal. I accept that the availability of an appeal, and an election to pursue that remedy, are both reasons that might support an exercise of discretion to refuse relief.
The failure of an applicant to exercise an available right of appeal is generally regarded as a powerful consideration against the grant of a prerogative remedy. Counsel for Mr Chrisp referred, in particular, to the judgment of Martin CJ in Re Carey; Ex parte Exclude Holdings Pty Ltd[2006] WASCA 219; (2006) 32 WAR 501 [133] ‑ [140] (although the 'appeal' in that case, under s 105 of the State Administrative Tribunal Act 2004 (WA) is not a true appeal but is itself in the nature of judicial review). The alternative of a right of appeal is not, however, conclusive, and prerogative relief may still be granted where good reason is shown: R v Chief Constable of Merseyside Police; Ex parte Calveley [1986] QB 424, 433; R v Brisbane City Council, ex parte Read [1986] 2 Qd R 22, 43.
The fact that an appeal right has been exercised and exhausted also does not preclude relief under s 36: see, in the context of prerogative relief, Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549, 560. The District Court dismissed Mr Jackson's appeal as incompetent, and that conclusion was upheld by the Court of Appeal. The decision of the District Court would not supersede the decision of the magistrate in determining the rights and liabilities of the parties under the Dividing Fences Act. The obligation of Mr Jackson to contribute equally to the cost of repair and construction of the fence, including the retaining wall, would still be governed by the orders of the magistrate.
Counsel for Mr Chrisp referred also to the breadth of the relief sought by Mr Jackson in his application. I agree that none of those additional orders is consequential upon setting aside the orders of 14 October 2009, and cannot be made in an application under s 36. But the impermissible breadth of the orders sought is no reason to refuse to grant the relief to which Mr Jackson is entitled.
Finally, counsel for Mr Chrisp referred to the delay in bringing this application.
Neither s 36, nor the rules of court setting out the procedure for this application, contains any time limit: see Rules of the Supreme Court 1971 (WA) O 56A. Delay may result in a discretionary refusal of the application. I take into account, first, that Mr Jackson has been unrepresented at all times. Second, that he has not simply sat idle. After the orders were made in September 2010, he pursued his rights of appeal to the District Court and then to the Court of Appeal. Third, read literally, the orders impose a continuing obligation on him. Fourth, there is no evidence that Mr Chrisp (or anyone else) is prejudiced by the delay. While the written submissions prepared on behalf of Mr Chrisp referred to unspecified prejudice arising from the delay, counsel could identify no prejudice that would now flow were the orders set aside.
In summary, I am satisfied that the discretionary considerations relied upon by Mr Chrisp, individually or collectively, are not a sufficient reason to refuse relief when the orders in question are patently outside jurisdiction.
The orders made in the Magistrates Court at Armadale on 14 October 2009, in ARM/GEN 674/2009, are set aside.