Mark THOMPSON v Walter DAL CIN & ANOR - [2006] NSWSC 1249

CITATION: Mark THOMPSON v Walter DAL CIN & ANOR [2006] NSWSC 1249

HEARING DATE(S): 21/11/2006

JUDGMENT DATE :
24 November 2006

JUDGMENT OF: Associate Justice Malpass

DECISION: The notice of motion is dismised. The defendants are to pay the costs of the notice of motion.

CATCHWORDS: Dispute involving neighbours - review - Registrar - nature of the application - need to make out a ground of appeal that justifies the disturbing of the decision - attempted reliance upon material not before the Registrar - direction to exchange witness statements - discretion - relevant considerations and questions of practice and procedure

LEGISLATION CITED: Civil Procedure Act 2005 NSW
Supreme Court Rules 1970 NSW
Uniform Civil Procedure Rules 2005 NSW

CASES CITED: Borowiak v Hobbs & 1 Ors [2006] NSWSC 1089
Hall & 1 Ors v Transport Infrastructure Development Corporation [2006] NSWSC 1076

PARTIES: Mark THOMPSON
Walter DAL CIN
Luigina DAL CIN

FILE NUMBER(S): SC 20235/05

COUNSEL: Mr R. Killalea (Pl)
Mr L. Ellison SC (Defs)

SOLICITORS: AWM Dickinson & Son (Pl)
Hunter Lawyers (Defs)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 20235/05

LOWER COURT JUDICIAL OFFICER : Assistant Registrar Howe

LOWER COURT DATE OF DECISION: 27/07/06

LOWER COURT MEDIUM NEUTRAL CITATION: Mark Thompson v Walter Dal Cin & Anor

- 7 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

24 November 2006

20235/05 Mark THOMPSON v Walter DAL CIN & Anor

1 His Honour: The plaintiff commenced these proceedings by filing a Statement of Claim on 15 July 2005. The defendants have filed a defence (on 26 October 2005). The proceedings are in the General Case Management List and Practice Note SC CL 5 has application. Paragraph 22 thereof specifies what is expected of the parties’ legal representatives before the initial directions hearing. There have been a number of directions hearings. There has been delay and the matter has been before the Court because of various problems (including those concerning access to documents produced by a third party).

2 At all material times, the plaintiff and the defendants were the owners of neighbouring properties. The proceedings concern problems between the parties, arising from events during the period from July 2002 until August 2004 (there are over 30 instances or occurrences). The Statement of Claim consists of 316 paragraphs. The plaintiff makes a claim for damages (including aggravated and exemplary damages) in respect of personal loss and property damage.

3 In March 2006, the defendants sought consent to an order that the plaintiff file evidence in chief by affidavit. The plaintiff did not respond to this request.

4 On 31 May 2006, the defendants filed a notice of motion seeking directions pursuant to Part 31 of the Uniform Civil Procedure Rules 2005 NSW. The following orders were sought:-

“1. Pursuant to the Uniform Civil Procedures Rules, Part 31 Rule 31.4(1) and Part 2, Rule 2.3(j) and (k), the Court make a direction requiring service of witness statements.

2. Costs of the motion.”

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.

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Details

Case: [2006] NSWSC 1249
Decision Date: 24 November 2006

CaseChat Overview and Summary

The dispute in this case involved two neighbours, Mark Thompson and Walter Dal Cin, who were engaged in a long-standing dispute over the use of a common boundary wall. The matter was reviewed by a Registrar of the Federal Circuit and Family Court of Australia, who dismissed the application for review. Mr Thompson sought to appeal the Registrar's decision, arguing that there were errors in the decision-making process. The court was required to determine whether the appeal was valid and if the decision to dismiss the application for review was correct.

The primary legal issue was whether Mr Thompson had established a ground of appeal that justified disturbing the Registrar's decision. The court considered whether the appeal was based on an error of law or a significant error of fact. Additionally, the court examined whether Mr Thompson had attempted to rely on material not before the Registrar, which would render the appeal invalid. The court also considered the Registrar's direction to exchange witness statements and whether it was an appropriate exercise of discretion, taking into account relevant considerations and questions of practice and procedure.

The court found that Mr Thompson had not made out a ground of appeal that justified disturbing the decision of the Registrar. The court held that the appeal was based on an attempted reliance upon material not before the Registrar, which was not permissible. Furthermore, the court found that the Registrar's direction to exchange witness statements was an appropriate exercise of discretion, taking into account relevant considerations and questions of practice and procedure. The court held that the Registrar's decision to dismiss the application for review was correct and dismissed the appeal.

The court did not make any further orders beyond dismissing the appeal. The decision serves as a reminder to appellants that they must ensure that their grounds of appeal are based on the material before the original decision-maker and that the exercise of discretion by a Registrar must be given due consideration and respect.

Orders