Quarmby v Keating

[2009] TASSC 80

[2009] TASSC 80

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Quarmby v Keating [2009] TASSC 80

PARTIES:  QUARMBY, Alan
  v
  KEATING, John Majella Gerrard

FILE NO/S:  330/2009
DELIVERED ON:  9 September 2009
DELIVERED AT:  Hobart
HEARING DATE:  1 July 2009
JUDGMENT OF:  Slicer J

CATCHWORDS:

Magistrates –– Appeal and review –– Tasmania –– Motion to review –– The hearing –– Generally –– What constitutes a breach of the peace –– Whether restraint order includes removal of property –– Question of title.

Justices Act 1959 (Tas), s106.

Land Titles Act 1980 (Tas), s138, PtIXB.

Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
             Appellant:  In Person
             Respondent:  M O'Farrell SC and J Saric
Solicitors:
             Appellant:  
             Respondent:  Bradfields

Judgment Number:  [2009] TASSC 80
Number of paragraphs:  29

Serial No 80/2009
File No 330/2009

ALAN QUARMBY v JOHN MAJELLA GERRARD KEATING

REASONS FOR JUDGMENT  SLICER J

9 September 2009

1. The history of the circumstances which give rise to this appeal is set out in the decision of the Full Court in Quarmby v Keating [2008] TASSC 71. In 1981, the applicant purchased land at Southport which had been previously subdivided. The sub-division had not resulted in the removal of an existing boundary fence which the applicant believed showed the extent of his title, and he treated it as such. In 1991, Qasair, a company controlled by the respondent, purchased the adjoining land. The historic occupation and use continued until 2003. Qasair claimed the right of occupancy and the removal of the fence. The applicant resisted the claim, and, following discord which included claimed threats of violence and the forcible removal of the fence, sought a restraint order from a magistrate. The original application brought against Qasair was dismissed since a corporation was not susceptible to the order sought.

1. In May 2004, the respondent dismantled the fence, resulting in a fresh application being made against him personally.  On 16 January 2005, interim orders were made, but, by consent, the application was adjourned sine die and the order revoked upon mutual undertakings that the applicant would seek legal remedy, either through this Court or rectification by the Recorder of Titles, and the respondent agreeing not to damage the restored fence.  The applicant commenced proceedings (Action 33 of 2005), but, following a further removal of the fence, a further writ issued (Action 467 of 2006), later consolidated with the former.  Concurrently an order was made pursuant to the Justices Act 1959 ("the Act"), restraining the respondent until the determination of the actions. That order came to an end upon the dismissal of the consolidated action on 23 August 2007 ([2007] TASSC 65), or at least on the dismissal of the appeal. The applicant sought review of the determination, and concurrently sought rectification of title by the Recorder. While both matters were pending, the respondent again destroyed the fence. The applicant sought either the extension or reinstatement of the order made on 16 January 2005, and by administrative procedure, the original application 92700 of 2004 was renumbered 90718 of 2008, which is the subject of this appeal.

1. The application sought restraint until the respondent had obtained a declaration or order for possession of the disputed land.  In June 2008, the application was adjourned sine die.  On 19 November 2008, the Full Court dismissed the appeal rejecting arguments based on the Limitation Act 1974, and determining that the provisions of the Land Titles Act 1980, Pt IXB, precluded the applicant from obtaining possessory title. The terms of the decision of the Full Court did not preclude the Recorder from determining title based on possession in accordance with the provisions of the Land Titles Act, s138V. At the times relevant to this appeal, the Recorder had made no determination in favour of, or adverse to, the respondent.

1. On 22 December, application 90718 of 2008 was relisted for mention before a magistrate at the request of the respondent.  The respondent requested that it either be dismissed or set down for hearing.  The learned magistrate declined to summarily dismiss the application, observing that he was concerned more with the "keeping of the peace" than entering into a discussion about title.  Counsel for the respondent told the court:

"Well I could say with a great deal of confidence I'd get instructions to not breach the peace or whatever, that would probably be the extent of it."

1. The magistrate advised the applicant that he might entertain the making of interim orders if the respondent returned to destroy the fence, and he fixed a hearing date for 7 April 2009, but relisted the matter for 5 February, counselling "both parties to try to resolve the matter".  Some attempts were made to resolve or lessen the disputation.  The respondent, through his solicitors, suggested the signing of mutual undertakings not to "threaten, harass, abuse or assault", or "keep the peace", but rejected a suggestion that the magistrate's court was a proper jurisdiction to determine title.  The applicant claimed that the respondent had again "smashed up the boundary fence" on 14 January, and reiterated his seeking of a restraint order "until such time as he should by due process of law obtain an order for possession of what he claims".

1. The basis for the order sought was repeated to the court on the further mention day of 5 February.  The learned magistrate clearly stated to the parties what the issues were and the risks associated with any obdurate position, stating:

"Webster:  All I'm going to be hearing is whether or not there is likely to be a breach of the peace.  If I get a restraint order against your client (to Barnett) it's likely to be in terms that he keep the peace towards Mr Quarmby.

Bernett [sic]:  What does that mean?  We've all got to keep the peace towards everybody, don't we?

Webster:  I'm not going to decide who owns the land.  Next thing there's going to be – I'll make the order and there'll be an allegation that your client breached the peace.  It could go on for ever.  Or there'll be another application that – even though Mr Quarmby didn't get the order the first time – that circumstances have changed so there should be another application.  I mean, I would have thought that you've got to give serious thought to resolving this in a practical way.  You could consent to the order without ? being made against your client (?) – there's no orders made as to the ownership of the land.

Quarmby:  I tried to do this.

Webster:  OK.  I've had a go at you, Mr Quarmby, to see if I could resolve it through you, and now I've had a go at Mr Barnett so I can't … If you can't knock both heads together you try to knock each separately, right?  I've tried the both of you.  It's just a waste of both your moneys, I would have thought, and your time and the court's time – because we've got people waiting in prison for matters to be heard while we're hearing neighbourhood disputes.

Quarmby:  If this goes to a hearing.

Webster: Yes, on 7^th April 2009. You come along to give evidence as to why there should be a restraint order made against John Keating according to Section 106A of the Justices Act.

Quarmby:  OK

Webster:  And if Mr Barnett's client changes his mind, see whether the matter can be resolved.  Of course, if Mr Barnett makes a reasonable proposition to settle the matter and you don't settle the matter, Mr Quarmby … or it might be Dr Quarmby, is it?

…

Webster:  OK, if the matter doesn't resolve, I think you might get costs against you too.  If Mr Barnett's client says, 'Look, we're happy for an order to be made on these terms and that's the terms you get, you win and you get those terms, I might still order the costs against you – I couldn't give you costs anyway, I would have thought, because you're acting for yourself."

(The transcript is incomplete but conveys the sense of the exchanges, if not precise language.)

1. On 7 April, counsel for the respondent sought dismissal of the applications on the bases that:

(1)       the applicant was not a competent applicant within the ambit of the Justices Act, Pt10A;

(2)       the application constituted an abuse of process.

1. The foundation for both propositions was that since the Supreme Court had determined the question of title by possession adverse to the applicant, no issue of access to the disputed land or involving the removal of the fence could be determined by a court of summary jurisdiction.  Independent of issues of estoppel, counsel submitted the applicant was not a person who came within the ambit of the Justices Act, s106B(2)(b), and further that continued agitation of the title issue, already determined, constituted an abuse of process. Counsel had stated the contentions in too wide a manner. The ensuing exchanges between the applicant and the learned magistrate make it difficult to precisely determine the grounds on which the application was dismissed. The exchanges however show the basis on which the applicant shaped his case, namely that the fence was on land which was in his possession and the respondent was required to establish better title through a court declaration, or at least refrain until a determination made in accordance with the Land Titles Act, PtIXB.  The applicant claimed that until either or both of those events occurred, the respondent was not entitled to enter the land or use force in the removal of the fence.

"So the question becomes; does Dr Quarmby have any basis upon which to bring the application, and my view is that he doesn't, in that he – it's not his property, and s106B(2) gives only the person against whom the personal injury is directed or the threats of personal injury, or against whose property. So it's the owner – now I concede, and I will be – I accept that you don't actually have to be the legal owner you could have some other legal interest; of course you can be the tenant, you can be the – or have some other interest in the property such as that, but in this case, what Mr Keating does to his own property is a matter for Mr Keating, and I don't think that Dr Quarmby has any interest as required by s106B(2)."

Grounds of appeal

1. The grounds of the motion to review may be summarised as claim of error in:

(1)       Denial of natural justice and procedural error (grounds 1, 2 and 4).

(2)The findings that the Justices Act, s106A and 106B did not apply to the circumstances giving rise to the application or that the applicant did not have standing to pursue the proceedings (grounds 3, 5 and 6).

(3)       The application constituted an abuse of process (ground 7).

(4)       The making of the costs order and the scale awarded was not justified (grounds 8 to 12).

Status of the land

1. It is first necessary to consider the status of the land, the interests of the respective parties, and the effect of the judgment of the Full Court in [2008] TASSC 71. The applicant had brought an action based on trespass. His action was dismissed and that order confirmed by the Full Court. As between the parties to the restraint application, that determination constituted res judicata and the Magistrates Court bound accordingly.  The applicant could not rely on any claim that the respondent had further trespassed on the impugned land.  The decision of the primary judge and the Full Court did not preclude the statutory power of the Recorder of Titles to rectify the title claimed by the applicant, but unless or until the Recorder did so, no claim of trespass could be advanced against the respondent.  Simply put, the title of the registered land of the respondent was superior to that claimed through possession.  No vesting order had been made in accordance with the Land Titles Act, s138X, and the legislative provisions of s138 relating to "trust", had no application. That latter provision might operate retrospectively or be contingent on an ultimate vesting order, but did not afford the applicant a separate or independent right to claim infringement as against the respondent. Any claim for a resistant order could not, of itself, provide a basis for the making of an order under the Justices Act.  The applicant is correct in contending that the power of the summary court includes disputation arising over land or occupancy (Justices Act, s106A), but here, claimed interference based on trespass was precluded by the dismissal of the action brought in the Supreme Court.

Procedural fairness

1. The applicant was entitled to make his application and was entitled to continue with it, even beyond the dismissal of his action, if he could show a basis other than that of trespass simpliciter.  But, at some stage, he was required to support his application by evidence and argument.  The respondent was entitled to require him, through the court process, to complete his case.  The respondent was entitled to require the applicant to show why he, the respondent, should not be subject to any order, or its risk, restraining him from entering onto the land and exercise any legal rights afforded by that entry.  The respondent did so by requesting the court to list the matter for hearing.  The terms of the requested hearing were clearly stated by the respondent's counsel on 22 December 2008, and the transcript shows that the applicant was well aware of the issues intended to be canvassed.  The learned magistrate quite clearly indicated that the hearing could not be used as a forum to re-agitate the question of ownership and would be concerned with the risk of violence or "breach of the peace".  The learned magistrate also advised the parties of the risks of a costs order following disposition for or against either of the parties, and suggested attempts towards resolution.  On 5 February the applicant clearly stated his position that he was "… pursuing it for an order that the man Keating be restrained until such times as he legally and lawfully gets an order against me for ejectment".

Adding:

"No matter what his claim is, he has no right to smash down the fence and grab the land without a dispossession order."

1. It was quite clear to all concerned that the hearing would be concerned with the issues of rights of access or exclusion, apprehended or potential violence, and the power of the court to proscribe "breaches of the peace".

1. The applicant contends that at the April hearing he was taken by surprise by the summary application for dismissal, and prevented from providing evidence in support of his cause.  The latter contention will be considered concurrently with those concerning jurisdiction and power.  Insofar as Grounds 1 and 2 relate to notice or opportunity, they are dismissed.  It might have been preferable for the respondent to permit the applicant's case to run its course, but, given the clear statement of the basis of the applicant's case before the hearing, he was entitled to seek summary dismissal.  The court, in considering that application, engaged in a discourse with the applicant on the claimed bases of the continued application for restraint.  The terms of the original interim orders or agreements between the parties had expired or run their course upon the dismissal of the appeal.  Ground 4 is dismissed.

Jurisdiction and statutory power

1. Grounds 3, 5 and 6 claim error in that:

"3The Magistrate erred in law in considering that the due process of Section 106A and Section 106B (Restraint Orders) was available only to a narrower class of people and not to all including the Applicant to the Restraint Order.

…

5The Magistrate erred in law in finding that the Application for the Restraint Order was outside of the provisions of Section 106A and B of the Justices Act 1959.

6The Magistrate erred in fact in finding that the Applicant to the Restraint Order had no standing before the Court in that Application."

1. The Act, s106B, relevantly states:

"106B  Restraint orders

(1)          Where on an application made under this section, justices are satisfied on the balance of probabilities –

(a)   that –

(i)     a person has caused personal injury or damage to property; and

(ii)     that person is, unless restrained, likely again to cause personal injury or damage to property; or

(b)   that –

(i)     a person has threatened to cause personal injury or damage to property; and

(ii)     that person is, unless restrained, likely to carry out that threat; or

(c)   that –

(i)     a person has behaved in a provocative or offensive manner;

(ii)     the behaviour is such as is likely to lead to a breach of the peace; and

(iii)    that person is, unless restrained, likely again to behave in the same or a similar manner; or

…

(2)              An application for a restraint order may be made –

…

(b)by a person against whom, or against whose property, the behaviour that forms the subject-matter of the application was directed, or, where that person is a child, a parent or guardian of that child; or … "

The term property is defined in s106A as:

"'property', in relation to a person, means property that –

(a)   the person owns; or

(b)   the person does not own but in normal circumstances –

(i)     is used and enjoyed by the person; or

(ii)     is available for the person's use or enjoyment; or

(iii)    is in the person's possession; or

(iv)    is at the premises at which the person is residing; … "

1. The terms of the original application were subsumed into the document dated 25 February 2008.  The original had claimed acts of violence or threats to the applicant and his wife.  The document entitled "Application for Restraint Order" numbered 08/90718, filed on 25 February 2008 can be regarded as an amended or substituted application, since the pre-existing "final restraint order" issued on 1 March 2006 had run its course at most, on the date of the Full Court determination.  The amended or substituted application set out a brief history of the disputation and asserted:

"However on 9th January 2008 JMG Keating (Respondent) arrived at the disputed strip and smashed down the boundary fence again.

A sworn affidavit by witness B J Quarmby is attached [Annexure 'B'].

The Applicant has repaired the fence yet again to stockproof standard and requires the continuing use of the block for depasturing cattle including two bulls.

The Applicant wishes the Court to reinstate the Order dated 1 March 2006 (if indeed it is no longer in force) and for the re-instated Order to remain in force until the Respondent shall have obtained from the supreme court (or other competent Court) a judgement for possession of the land he has claimed (that is the disputed strip).

…

The Respondent is conducting an ongoing campaign of intimidation repeatedly destroying the fence each time it is repaired."

The applicant sought an "interim order … to prevent further incident in the near future … until litigation is completed as specified above".

1. There was no pending litigation other than these proceedings.  The applicant might have had a pending application before the Recorder, but certainly no separate litigation as against the respondent.  The restraint orders sought were:

"2)    keep the peace toward Dr Alan Quarmby and Barbara Jean Quarmby.

3)not directly or indirectly threaten, harass, abuse or assault Dr Alan Quarmby or Barbara Jean Quarmby.

…

5)not enter the premises at 96 Lady Bay Rd Southport Tasmania where Applicant is presently living or any other place where the said person/s may be staying or living from time to time

6)not go within 4 metres of the boundary of the premises at 96 Lady Bay Rd Southport or the boundary of any premises where the said Dr Alan Quarmby or Barbara Jean Quarmby may be staying or living from time to time,

…

9)not damage the premises at 96 Lady Bay Rd Southport Tasmania or any furniture, household effects or other items there

10)not damage any personal or other property of Dr Alan Quarmby or Barbara Jean Quarmby"

1. It was not competent for the court to prevent the respondent to enter onto the impugned land.  The court was entitled to make orders requiring the respondent to "keep the peace" to the applicant and to restrain him from any threatening harassment, abuse or assault. It was entitled to proscribe any damage to the premises at 96 Lady Bay Road, Southport, or personal or other property of the applicant.  But that begged the question of what was that property or land.  The questions of title to the land, possessory interest, and trespass, had been determined adverse to the applicant.  The possibility of a trust provided for by the Land Titles Act was contingent on any determination by the Recorder.  It afforded no basis for any claim by the applicant that he had better title than the respondent.  The learned magistrate did not determine that he had no power to grant a proscribing order on the basis of a wrongful interpretation of the legislation.  The learned magistrate was conscious of his jurisdiction to prevent physical violence as shown in the following exchange:

"HIS HONOUR:   Dr Quarmby, Mr O'Farrell has raised exactly the issues that I was struck by this morning when I read the application and prepared for the hearing.   On what basis can I make any decisions, given the fact that you don't allege any personal injuries – is that correct?

DR QUARMBY:   I don't what?

HIS HONOUR:   You don't allege that there is a threat for personal injuries or that you – or that Mr Keating caused any personal injury or threat to personal injury to you, do you?  Is that the situation?

DR QUARMBY:   No, I don't agree that that's the case.

HIS HONOUR:   Well where have you alleged in your application that there's a threat of personal injury or actual personal injury caused to you or there was a threat of personal injury to you?   That's just the first part of the question?

DR QUARMBY:   I've got an order of the – this person will be restrained from entering the premises and from destroying a fence on the premises.

HIS HONOUR:   Yes, okay, but your application – any application for a restraint order has to be based on a threat or something that might happen or something that has happened – right?   Or it might happen being based, I suppose, on what has happened in the past, or a threat that might happen – right – I just don't make orders against people for the sake of making orders against people.

DR QUARMBY:   Thank you.   Well the answer is; when were there threats and the threats were made when the man originally claimed –

HIS HONOUR:   No, no, well just answer the question – right.

DR QUARMBY:   Yeah, I am.

HIS HONOUR:   No, you're not.

DR QUARMBY:   Okay.  

HIS HONOUR:   You've gone on to property – I only want to know whether or not you have alleged that there's any allegation that – sorry – you make any allegation that there has been or is likely to be a threat of personal injury against you – personal injury, that's all I'm worried about at the moment.

DR QUARMBY:   No.

HIS HONOUR:   Okay, so that's not part of your case?

DR QUARMBY:   Sorry?

HIS HONOUR:   That's not part of your case?

DR QUARMBY:   No.

HIS HONOUR:   Okay.   Well let's go on to the second part.   You – what threat to your property do you allege?

DR QUARMBY:   The threats that –

HIS HONOUR:   Either past or in future?

DR QUARMBY:   Yes, the threats made by the respondent through his lawyers, Bradfields, that if I did not give up a strip of land and allow him to fence it in with his property when he would remove the fence and forcibly dispossess me of this strip of land."

1. The learned magistrate later addressed the question of standing, stating:

"If I find that you do have standing we'll proceed to a hearing."

1. It may be that the differing questions of standing and power were admixed, but the purport of the above exchanges is clear.  The court would proceed to a hearing if there was a claimed basis of personal violence, actual or apprehended.  The court further considered the claim of "damage to property" involving the removal of the fence.  The applicant maintained the claim of unlawful damage since he retained possessory title which precluded any "self help" remedy.  The argument was based on an incorrect understanding of the question.  The analysis of the respective rights can be stated as:

(1)       Did the respondent have a registered title to the land on which was placed a fence?

(2)If yes, could the applicant claim a better title through possession and, if no, could he establish such title through an action in trespass?

(3)If no to question (2), did the title of the respondent entitle him, as against the applicant, to remove a fence erected on the land?

(4)If yes to question (3), did the pending application for rectification or vesting before the Recorder afford the applicant the right to retain the fence?

(5)If no to question (4), did a court of summary jurisdiction have power to restrain the respondent from interference with that property?

1. The court of summary jurisdiction was bound by the order of the Supreme Court, confirmed on appeal, recognising the superior title of the applicant.  I would answer question (4) in the negative.  The applicant had no property right unless and until the Recorder operated a vesting order.  Here the applicant had not claimed personal violence and confined his case to entitlement through possession.  He could not show better title and it was not for the respondent to further establish that "better title" through an action of ejectment.  He was not entitled to re-agitate the issue through the restraint proceedings.  The learned magistrate did not determine the standing of the applicant by reference to a class of people or that his jurisdiction did not extend to property damage.  The learned magistrate was entitled to uphold the application for dismissal.  Grounds 3, 5 and 6 are dismissed.  The learned magistrate permitted the applicant to fully expound and advance his case.  He explored, through discourse, the basis and parameters of the case, and did not deny procedural fairness.  Ground 4 is dismissed.

Costs

1. Following the upholding of the summary dismissal application, the learned magistrate ordered the applicant to pay "indemnity costs" at the rate of 85 per cent of the Supreme Court scale.  Grounds 7 to 12 claim error in that:

"7The Magistrate erred in his finding of fact that the Application for the Restraint Order was an abuse of process by the Applicant.

8The Magistrate erred in fact in finding that the Applicant to the Restraint Order had refused a reasonable offer of settlement of the issues made by the Respondent.

9The Magistrate erred in fact in finding that the Applicant to the Restraint Order had not made a reasonable offer of settlement to the Respondent.

10The Magistrate erred in fact in finding that the Respondent to the Restraint Order had not refused a reasonable offer from the Applicant to the Restraint Order.

11The award of costs against the Applicant for the Restraint Order was not justified.

12The award of costs against the Applicant for the Restraint Order on a punitive scale was not justified."

1. The learned magistrate determined that the conduct of the proceedings constituted "special circumstances", and in his view had a degree of "harassment and abuse of process".  In doing so, he fell into error.  The applicant had contended that the proceedings had been brought in good faith and the amended or substituted application made on 25 February, was a result of the respondent's removal of the fence in January 2009.  There was confusion about the bringing of the original application, its timing and the conduct of the parties between December 2008 and the date of hearing.  The exchanges resulted in recourse to correspondence exchanges between the parties during that period.  The following extracts from the transcript illustrate the problems of reaching a conclusion without identification of all the material acted upon:

"HIS HONOUR:   I'm aware of that.   So why shouldn't I give you costs – order costs to the respondent of the application but only on a solicitor – only on a full indemnity basis after the decision of the 19^th of November?

DR QUARMBY:   Sorry?   Well the application was made while the matter was still before the Supreme Court.

HIS HONOUR:   Well I suppose the – Mr O'Farrell might say to that ‘Why didn't you wait until the Supreme Court decision had been handed down before you made an application?' –

DR QUARMBY:   No, that's not true.   The application was made –

HIS HONOUR:   In February –

DR QUARMBY:   - as a result of a slashing down of the fence in January 2008.

HIS HONOUR:   That's right.

DR QUARMBY:   At that time the matter was still before the Supreme Court, the applic – case before the Supreme Court, and at the same time we had an undertaking from Mr Keating that he would not smash the –

HIS HONOUR:   Well why didn't you get an order in the Supreme Court?   If the matter was before the Supreme Court wasn't that the appropriate jurisdiction to ask the judge to make some interim orders rather than come down here to the Magistrates Court and commence a separate action?

…

HIS HONOUR:   I was – I don't know where I saw it but I was under the impression that somewhere along the line I'd seen a letter from Bradfields to you offering to concede on the basis that you were prepared to enter into a similar undertaking; in other words that you both keep the peace towards each other – but I might have been wrong.

DR QUARMBY:   The last letter –

HIS HONOUR:   I think a letter – I don't know how this got before me, Mr O'Farrell, I don't know whether I should be looking at, but –

MR O'FARRELL:   Well –

HIS HONOUR:   There's a letter amongst –

DR QUARMBY:   Okay.  

HIS HONOUR:   - the file but it's from Mr Saric –

DR QUARMBY:   Well I've got the copies here."

1. It is difficult at this remove to identify all of the material relied upon, since reference was made to material in the appeal book, extracts from correspondence, and affidavits.  At the conclusion of those exchanges, his Honour concluded:

"HIS HONOUR:   With respect, the correspondence that you've read out indicates to me that you've tried to avoid all reasonable propositions put forward to you by the respondent.

…

ORDER - HIS HONOUR:   Well basically, Dr Quarmby, I think that you should pay on a full indemnity basis because this action was doomed.  

DR QUARMBY:   Sorry?

HIS HONOUR:   This action was doomed to fail you.   You had two actions in – well you had two actions in the Supreme Court, they were well and truly litigated.   You had – went to the – not only had the matter heard before Tennent, J you had the matter heard before a full bench, the Full Court, in a civil jurisdiction.   At the same time you chose to come down here and; that is to the Magistrates Court, and run a – basically a parallel argument.

Now that obviously was a waste of time and resources to which I consider that the respondent is entitled to be reimbursed in full.   Now – so I'm going to make an order – and I think that today also constitutes special circumstances … "

1. The learned magistrate was entitled to conclude that the applicant was obdurate and fixed in his position.  But the action of the respondent in removing the fence in January 2009 between the date of listing and mention and the hearing, was also relevant to the conduct of the respective parties.  The fence had been erected in 1981 and the applicant had long enjoyed possessory use since the following year.  The respondent had sought to enforce his registered title in 2004 and 2006, actions which had resulted in the institution of restraint proceedings.  The action in trespass failed, in part, because of legislative changes with retrospective effect to the scheme for recognition of possessory title made in 2001.  Those amendments provided for remedy through power afforded to the Recorder of Titles.  The parties had reached some accommodation affecting access and intervention, pending determination by the Supreme Court.  That determination was made in November 2008.  The respondent sought the re-listing of the matter in December.  A hearing date was allocated.  The applicant still had a pending application before the Recorder.  If he were to be successful a title could be granted.  He was wrong to claim possession until the respondent succeeded in an action for ejectment.  But it appears as if he was maintaining legal recourse through the Land Titles Act.  He did not seek the relisting of the original application and had no restraint orders in force.  He was presumably content with the status quo, at least until the Recorder made an adverse determination.  The respondent was entitled to have the original application finalised and had taken appropriate steps to that end.  The court had, quite properly, at the December hearing, urged resolution by agreement.  There were some negotiations rendered nugatory by the actions of the respondent on 9 January 2009.  Doubtless the respondent felt frustrated by the ongoing disputation, but he had further return and hearing dates.  Recourse to his existing proprietary right in the light of correspondence sent by his solicitors, resulted in the finding of an amended or updated application.  That application was in a form "not doomed to fail" if it involved violence or harassment. 

1. Insofar as the applicant's case depended on the interpretation operation of the Land Titles Act, s138W(2), it was arguable that a "co-existent or concurrent" interest remained. That the applicant was wrong in law does not of itself render the proceedings an abuse of process. The learned magistrate was required to consider the "reasonableness" or otherwise of the parties between December 2008 and April 2009, on the basis of identified material, or to permit the applicant or the opportunity to outline the basis for persistence in the light of the wider recourse sought through the Recorder. The respondent had successfully obtained the summary dismissal of the primary application, brought on at the behest of the respondent, but not entitled to make a general unbounded order of indemnity costs. That order, as certified by the District Registrar, provides:

"That the application for costs (oral) be granted,

General Order

The Court ordered that the costs of the application, and incidental to the application be paid on an indemnity basis by the applicant at a rate of 85% of Supreme Court scale."

1. Ground 7 is made out.  Grounds 8 – 10 which comprise the same basis are made out.  Grounds 11 – 12, insofar as they relate to the terms of the order, are made out.

1. The court file supplied by the Magistrates Court contains a Bill of Costs for Taxation filed on 16 April 2009.  It shows a claim for $5,171.31 for costs incurred between 5 March 2008 and 15 April 2009.  The terms of the Bill have not affected my conclusion that the terms of an open or unbounded costs order required consideration of identified relevant material and history.  However, the claim illustrates the problem of the making of such a general order.

Conclusion

1. The order dismissing the restraint order is upheld and the motion to review that order dismissed.  The motion to review the costs order is upheld and the order quashed.