Komorowski v Ong - [2019] WASCA 201

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   KOMOROWSKI -v- ONG [2019] WASCA 201
CORAM:   MURPHY JA
MITCHELL JA

HEARD:   21 NOVEMBER 2019
DELIVERED          :   13 DECEMBER 2019
FILE NO/S:   CACV 82 of 2019
BETWEEN:   LUDWIG KOMOROWSKI
First Appellant

LYNETTE ANNE KOMOROWSKI
Second Appellant

AND

SIOE SAN ONG
First Respondent

KIFI TJAHAJA
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   STONE DCJ
File Number            :   APP 114 of 2018

Catchwords:

Appeal against Magistrates Court orders - Practice and procedure - Dividing fences - Whether there was any right of appeal to the District Court from a decision that there was no need to construct a new dividing fence

Legislation:

Dividing Fences Act 1961 (WA), s 9

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

First Appellant	:	In person
Second Appellant	:	No appearance
First Respondent	:	No appearance
Second Respondent	:	In person

Solicitors:

First Appellant	:	In person
Second Appellant	:	In person
First Respondent	:	In person
Second Respondent	:	In person

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

Craig v South Australia (1995) 184 CLR 163
Jackson v Chrisp [2012] WASCA 158
Re Western Australian Trotting Association (1992) 9 WAR 178

JUDGMENT OF THE COURT:

The appellants and respondents are neighbours who share a common boundary on land in Applecross on which their houses are constructed. The rear part of the boundary is divided by a 1.8 m high fence made of corrugated cement sheeting. Since purchasing their land, the respondents have constructed a two storey house on a sand pad that raised the ground level of their land from its previous elevation.
The appellants were concerned that the respondents' new house overlooks their property, interfering with their privacy. They contended that the change in the ground level of the respondents' land meant that the existing fence was no longer sufficient. They claimed that the respondents should construct a new fence at the respondents' cost, on the basis that the change to the level of the respondents' land is the cause of the insufficiency of the existing fence.
The parties did not reach agreement and the appellants applied to the Magistrates Court for an order that the respondents erect a new fence of certain specifications. The application was tried before a magistrate on 1 October 2018.
On 4 October 2018, the magistrate delivered her reserved decision dismissing the appellants' application. The magistrate recorded that the trial proceeded on the basis that the appellants' application was exclusively pursuant to s 9 of the Dividing Fences Act 1961 (WA) (Act).[1] Section 9(1)(d) of the Act relevantly empowered the Magistrates Court to make an order as to the need for the fence to be constructed, where one of the owners who were not in agreement about that matter applied to the court. The magistrate dismissed the appellants' application on the basis that her Honour was not satisfied that there was any need for the construction of the new dividing fence sought by the appellants.[2]
[1] Magistrates Court ts 4/10/18, 3.
[2] Magistrates Court ts 4/10/18, 11.
On 13 November 2018, the appellants filed an appeal notice in the District Court, purporting to appeal against the magistrate's decision on a number of grounds. The purported appeal was heard by the primary judge on 1 and 4 July 2019. At the conclusion of the hearing on 4 July 2019, the primary judge delivered ex tempore reasons in which his Honour concluded that none of the appellants' grounds of appeal to the District Court were established. His Honour dismissed the appeal.
On 24 July 2019, the appellants instituted the present appeal from the primary judge's order. An appellants' case was filed on 7 October 2019. The registrar subsequently issued a notice requiring the parties to attend before the court on 21 November 2019 for the appellants to show cause why the appeal should not be dismissed, relevantly on the basis that none of the appellants' grounds of appeal have any reasonable prospect of succeeding.
It is unnecessary to deal with the appellants' grounds of appeal. This is because, in our view, the appeal to the District Court was incompetent and necessarily had to be dismissed on that basis, irrespective of the merits of the grounds of appeal alleging error by the magistrate. Even if they were to be established, none of the grounds of appeal in this court could lead to an order setting aside the dismissal of the appellants' appeal to the District Court. That is so for the following reasons.
As noted above, the magistrate's decision was made under s 9 of the Act. The order dismissing the appellants' application in the Magistrates Court gave effect to the magistrate's determination under s 9(1)(d) of the Act that there was no need for a new fence to be constructed.
Section 9(4) of the Act provides that an order made under s 9 of the Act is final. That language conveys Parliament's intention to preclude an appeal from a decision of the Magistrates Court made under s 9 of the Act. It qualifies the general provision for appeals from the Magistrates Court in s 40 of the Magistrates Court (Civil Proceedings) Act 2004 (WA).[3] While s 9(4) does not preclude judicial review for jurisdictional error or error of law on the face of the record,[4] it does preclude an appeal from a decision made under s 9 of the Act. This reflects a policy decision of Parliament that neighbours in dispute over a dividing fence should be able to have relevant aspects of that dispute determined by the Magistrates Court without being burdened by the additional cost and inconvenience of appeals to superior courts.
[3] See Jackson v Chrisp [2012] WASCA 158 [58] - [61], in relation to the equivalent provisions of s 15(6) of the Act.
[4] See Re Western Australian Trotting Association (1992) 9 WAR 178, 181.
Therefore, the appellants had no right of appeal against the magistrate's decision under s 9 of the Act in this case. The appeal to the District Court ought to have been dismissed as incompetent. As such, even if the appeal grounds challenging the merits of the magistrate's decision were established, there would be no proper basis for setting aside the primary judge's order dismissing the appeal to the District Court.
When the above matters were raised with the first appellant at the hearing on 21 November 2019, he sought and was granted an opportunity to make further written submissions on the question of whether there was any appeal available from the magistrate's decision.
Written submissions subsequently filed by the appellants seek to raise two points.
First, the appellants contend that no order was made either by the magistrate or the primary judge when giving a judgment adverse to them, other than stating that the existing dividing fence between the parties was a sufficient fence under the Act. That submission is not correct. The order made by the magistrate was that the 'application is dismissed'. The order made by the primary judge was that the 'appeal be dismissed'. In any event, the appellants' submission does not detract from the conclusion that the decision which they purported to appeal against was made under s 9 of the Act, and that no appeal lies from a decision under s 9 of the Act.
Secondly, the appellants submit that they are seeking a judicial review based on the factors outlined in their appellants' case. That submission cannot be accepted. The present appeal is not against a decision under s 36 of the Magistrates Court Act 2004 (WA), which is the statutory provision for judicial review of decisions of the Magistrates Court. An application under s 36 is made to the general division of the Supreme Court, rather than to the District Court or to this court. Neither the appeal notice to this court nor the appeal notice to the District Court can be treated as an application under s 36 of the Magistrates Court Act. Further, the appellants' grounds of appeal in the present proceedings do not arguably establish any grounds for judicial review of the magistrate's decision. The grounds do not arguably raise either a jurisdictional error, an error of law on the face of the record (recognising the limited scope of the 'record' for this purpose[5]) or any other available ground of judicial review under s 36 of the Magistrates Court Act.
[5] As to which, see Craig v South Australia (1995) 184 CLR 163, 180 - 183.
The appeal should therefore be dismissed on the basis that none of the grounds of appeal have any reasonable prospect of succeeding in having the order dismissing the appeal to the District Court set aside. The appellants had no right to appeal to the District Court, which should have dismissed the appellants' purported appeal to that court as incompetent. The orders of the primary judge dismissing the appeal to the District Court were therefore unquestionably correct.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
Associate to the Honourable Justice Mitchell
17 DECEMBER 2019