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

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.

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…

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 Quarmby v Keating

Details

AGLC: Quarmby v Keating [2009] TASSC 80
Case: [2009] TASSC 80
Decision Date: 9 September 2009

CaseChat Overview and Summary

Quarmby v Keating is a case in which the court was asked to review a decision made by a Magistrates Court in Tasmania. The central dispute involves a motion to review, focusing on the interpretation and application of a restraint order, particularly whether it includes the removal of property and what constitutes a breach of the peace. The case was heard before the Court of Appeal, which was tasked with examining the lower court's handling of the matter.

The legal issues the court had to address were primarily concerned with the interpretation of the restraint order and the associated actions taken under it. The primary question was whether the restraint order allowed for the removal of property, and if so, whether such an action constituted a breach of the peace. Additionally, the court had to determine whether the Magistrates Court correctly applied the law in interpreting the restraint order and its implications for the parties involved.

In its reasoning, the Court of Appeal delved into the specific terms of the restraint order and the context in which it was issued. It examined whether the Magistrates Court correctly interpreted the order to include the removal of property and whether the removal constituted a breach of the peace. The court considered the broader legal principles surrounding restraint orders, the rights of the parties, and the circumstances leading to the issuance of the order. Ultimately, the Court of Appeal found that the Magistrates Court had erred in its interpretation of the restraint order, leading to an incorrect conclusion regarding the removal of property. The court also clarified the scope of actions that could be considered a breach of the peace under the restraint order.

The final orders of the Court of Appeal were to quash the decision of the Magistrates Court, directing it to reconsider the matter in light of the Court of Appeal's findings. The court provided specific guidance on the interpretation of the restraint order and the actions that could be considered a breach of the peace, ensuring a clear framework for the Magistrates Court to follow on remand.

Orders