Laughton v Marsh - [2019] WASCA 74

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   LAUGHTON -v- MARSH [2019] WASCA 74
CORAM:   MURPHY JA
MITCHELL JA

HEARD:   16 MAY 2019
DELIVERED          :   16 MAY 2019
PUBLISHED           :   16 MAY 2019
FILE NO/S:   CACV 9 of 2019
BETWEEN:   ANDREW LAUGHTON
Appellant

AND

SHARYL MARSH
JAMES GLYNN MARSH
Respondents

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   STEVENSON DCJ
Citation: LAUGHTON -v- MARSH [2018] WADC 172
File Number             :   APP BUN 1 of 2017

Catchwords:

Practice and procedure - Appeal to District Court of Western Australia dismissed after failure to comply with order requiring payment for security of costs into court - Whether primary judge erred in dismissing appeal - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondents	:	No appearance

Solicitors:

Appellant	:	In person
Respondents	:	Not taking part

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

Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Laughton v Marsh [2017] WADC 141

REASONS OF THE COURT:

At the hearing on 16 May 2019, we ordered that this appeal be dismissed on the basis that none of the grounds of appeal had a reasonable prospect of succeeding. These are our reasons for making that order.

Background

Boundary fence collapse

On or about 4 September 2012, the boundary fence between the appellant and respondents' properties in College Grove collapsed. That fence sat atop a retaining wall which supported the higher ground on the common boundary. That retaining wall was also damaged, taking on a slight curve and lean into the appellant's property.[1] The strip of land between the properties is a sewerage easement containing a sewer and inspection points installed in 1991.[2]

Magistrates Court proceedings

[1] Magistrates Court ts 17 August 2016, 85.

[2] Magistrates Court ts 17 August 2016, 89.

On 28 April 2015, the appellant commenced proceedings in the Magistrates Court, claiming damages in negligence for the replacement of the boundary fence, reinforcement of the retaining wall and removal of the 'extra overburden loading'.[3] The appellant alleged that 700 mm of sand was stacked against the fence on the respondents' side, which an engineer's report showed could cause the retaining wall to collapse.[4]
[3] Magistrates Court General Procedure Claim lodged 28 April 2015.
[4] Magistrates Court General Procedure Claim lodged 28 April 2015.
A trial took place in the Magistrate's Court on 16 - 17 August 2016. At the conclusion of the trial, the magistrate delivered oral reasons for dismissing the appellant's claim. The claim was dismissed essentially on the basis that there was no evidence that the respondents put extra soil against the fence as alleged by the appellant.[5] The magistrate also rejected the appellant's contention that the respondents had a positive duty to remove sand from the sewage easement area where it came against the fence.[6] The magistrate provisionally assessed damages in the amount of $27,008.50, against the contingency that her Honour might be found…

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 Laughton v Marsh

Details

AGLC: Laughton v Marsh [2019] WASCA 74
Case: [2019] WASCA 74
Decision Date: 16 MAY 2019

CaseChat Overview and Summary

In the case of Laughton v Marsh, the matter was before the District Court of Western Australia on an appeal from an earlier decision. The primary dispute involved issues related to the payment of costs, specifically the security of costs ordered by the court. The appellant, Laughton, was dissatisfied with the lower court's decision and sought to appeal this matter to the District Court. The appellant argued that the primary judge had erred in dismissing the appeal due to non-compliance with an order that required payment of security for costs into the court.

The legal issue at the heart of this appeal was whether the primary judge had made an error in dismissing the appeal on the basis that the appellant had failed to comply with the order to pay security for costs into the court. The appellant contended that the primary judge should not have dismissed the appeal, as the non-compliance with the order was not a matter that should have precluded the appeal from proceeding. The appellant's argument hinged on the procedural fairness of the dismissal and whether it was appropriate under the circumstances.

The court, in dismissing the appeal, found that the primary judge had not erred in dismissing the appeal due to the appellant's non-compliance with the order to pay security for costs into the court. The court emphasised that the order was a condition precedent to the appeal being heard, and the appellant's failure to comply with this condition was a valid ground for dismissal. The court further found that the primary judge had exercised their discretion correctly in dismissing the appeal, and the appellant's arguments regarding procedural fairness did not alter this outcome.

No further orders were made by the court in light of its findings. The appeal was dismissed, and the original decision of the lower court remained in place.

Orders