Purton v Jackson - [2013] TASSC 46

[2013] TASSC 46

COURT: SUPREME COURT OF TASMANIA

CITATION: Purton v Jackson [2013] TASSC 46

PARTIES:  PURTON, Judith
  PURTON, Mark
  v
  JACKSON, Maureen Faye

JACKSON, Athol Charles
WARATAH-WYNYARD COUNCIL

FILE NO:  484/2011
DELIVERED ON:  22 August 2013
DELIVERED AT:  Hobart
HEARING DATE:  10 December 2012
JUDGMENT OF:  Tennent J

CATCHWORDS:

Limitation of Actions – Extension or postponements of limitation periods – Generally – General power of court to extend limitation periods – Specific power pursuant to Resource Management and Planning Appeal Tribunal Act 1993, s25 – Principles upon which discretion exercised – Explanation for delay – Prejudice – Merit of appeal to tribunal and court.

Hill v Iluka Corporation Ltd & Anor [2002] TASSC 113, referred to.
Resource Management and Planning Appeal Tribunal Act1993 (Tas), s25.
Aust Dig Limitation of Actions [1061]

REPRESENTATION:

Counsel:
             Applicants:  K J Stanton
             First Respondents:  B R McTaggart SC
Solicitors:
             Applicants:  Crisp Hudson & Mann
             First Respondents:  Wright Gilmour

Judgment Number: [2013] TASSC 46
Number of paragraphs: 58

Serial No 46/2013
File No 484/2011

JUDITH PURTON and MARK PURTON v
MAUREEN FAYE JACKSON and ATHOL CHARLES JACKSON
WARATAH-WYNYARD COUNCIL

REASONS FOR JUDGMENT TENNENT J

22 August 2013

These reasons deal with an application to extend the time within which an appeal may be brought against a decision of the Resource Management and Planning Appeals Tribunal ("the tribunal") made 26 February 2009.

The applicants are Mark Andrew Purton and Judith Purton. They own and live at a property at Snares Road, Morrleah in Tasmania ("the Purton land"). Athol Charles Jackson and Maureen Faye Jackson ("the respondents") own land which adjoins the Purton land. The respondents applied to the local council, that is the Waratah-Wynyard Council ("the Council"), for a planning permit to allow them to build a home on their land. The applicants lodged an objection. Notwithstanding that objection, the Council granted a planning permit. The applicants lodged an appeal against the granting of that permit with the tribunal. On 26 February 2009, the tribunal determined that it had no jurisdiction to entertain that appeal. Briefly, the reason for that was that it determined that the Council should not have granted the permit it did, therefore there was no valid permit and, as a consequence, no jurisdiction to deal with an appeal against that invalid permit.

There is no doubt that the applicants could have appealed the decision of the tribunal of 26 February 2009 in February/March 2009. They did not. Their explanation for not doing so was that the tribunal had said it had no jurisdiction to determine their appeal against the Council's planning permit on the basis that permit was invalid. They assumed therefore that, as a matter of fact, there was no permit, and that there was no need for any appeal from the tribunal's decision.

Unbeknownst to the applicants, the respondents, relying on the issue of the planning permit by the Council in the first instance, applied for a building permit. That application was rejected, and the respondents appealed that…

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 Purton v Jackson

Details

AGLC: Purton v Jackson [2013] TASSC 46
Case: [2013] TASSC 46
Decision Date: 22 August 2013

CaseChat Overview and Summary

Purton v Jackson involved a dispute between the parties over the limitation period for an appeal to the Resource Management and Planning Appeal Tribunal. The applicant sought an extension of the limitation period for lodging an appeal against a decision made by the respondent. The matter was heard in the Supreme Court of Queensland.

The primary legal issue before the court was whether the applicant's delay in lodging the appeal was sufficiently justified to warrant an extension of the limitation period. The court was required to consider the principles governing the exercise of the court's discretion to extend limitation periods, as well as the specific provisions of the Resource Management and Planning Appeal Tribunal Act 1993. The court also needed to assess the merits of the applicant's appeal and whether the respondent would be prejudiced if the limitation period was extended.

The court held that the discretion to extend limitation periods should be exercised cautiously and only in exceptional circumstances. The applicant's delay in lodging the appeal was significant, and the applicant had not provided a satisfactory explanation for the delay. While the merits of the appeal were strong, the court considered that the respondent would be prejudiced if the limitation period was extended. The court ultimately found that the applicant's delay was not sufficiently justified, and the application for an extension of the limitation period was dismissed.

The Supreme Court of Queensland ordered that the application for an extension of the limitation period be dismissed, and the appeal to the Resource Management and Planning Appeal Tribunal was therefore time-barred. The court emphasised that the discretion to extend limitation periods should only be exercised in exceptional circumstances, where the delay is sufficiently justified and there is no prejudice to the respondent.

Orders