Quarmby v Oakley and Harper - [2011] TASSC 20

[2011] TASSC 20

COURT: SUPREME COURT OF TASMANIA

CITATION: Quarmby v Oakley and Harper [2011] TASSC 20

PARTIES:  QUARMBY, Alan
FILE NO: 155/2002  v
  OAKLEY, Barrie Graeme

FILE NO: 171/2002 QUARMBY, Alan
v
HARPER, Noel Geoffrey

FILE NO/S:  155/2002 and 171/2002
DELIVERED ON:  3 May 2011
DELIVERED AT:  Hobart
HEARING DATE:  4, 7 – 11, 15 and 16 February, and 21 March 2011
JUDGMENT OF:  Evans J

CATCHWORDS:

Torts – Trespass – Trespass to the person – What constitutes and defences thereto – Assault – Onus of proof of justification on defendant.

Howard v Wing [2000] TASSC 147; Miller v Sotiropoulos [1997] NSWCA 204; Underhill v Sherwell [1997] NSWCA 325; Devonport v Wilson [2009] SASC 336, applied.
Aust Dig Torts [212]

REPRESENTATION IN EACH ACTION:

Counsel:
Plaintiff: K B Procter SC
Defendants: M E O'Farrell SC and T J Williams

Solicitors:
Plaintiff: Murdoch Clarke
Defendants: Gunson Williams

Judgment Number: [2011] TASSC 20
Number of paragraphs: 127

Serial No 20/2011
File No 155/2002 and 171/2002

ALAN QUARMBY v BARRIE GRAEME OAKLEY
ALAN QUARMBY v NOEL GEOFFREY HARPER

REASONS FOR JUDGMENT EVANS J

3 May 2011

These proceedings involve claims of assault and trespass made by the plaintiff against each defendant, and counterclaims of trespass made by each defendant against the plaintiff. The key claims arise from what is essentially a boundary dispute between the parties over a strip of land the width of which varies from between about one metre to about three metres.

Background

The land in question is in Southport and is identified on a plan, copies of which were attached to amended statements of claim delivered to each defendant. In the course of the evidence a copy of this plan was a primary point of reference for witnesses. As discussed with counsel, I have added features, letters and other indicators to the plan, a copy of which appears at the end of this decision. References to such matters in the course of these reasons can usually be related back to this plan.

The strip of land runs between OR and WJ on the plan.

Whilst the plan refers to Monmouth Street, no such road has ever been formed. Monmouth Street was designated to be a reserved road by the registered plan which created the township of Hythe (now known as Southport) in July 1855. The land described as Monmouth Street was owned by the Crown. The plan shows the outline of a post office constructed on part of Monmouth Street many years ago. The title to this part, the post office block, was sold by the Crown and, in 1981, the plaintiff became the registered proprietor of that block. As established by an investigation conducted by the Recorder of Titles, the boundary of the post office block is O, O2, I, W.

The building that had been the post office was burnt down on 13 December 1996, and it has not been replaced. Its foundations and chimney remain, as do a clothes hoist, shed…

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: [2011] TASSC 20
Decision Date: 3 May 2011

CaseChat Overview and Summary

In the matter of Quarmby v Oakley and Harper, the plaintiff, Quarmby, brought an action against Oakley and Harper for trespass to the person, specifically assault. The case was heard in the relevant Australian court, where the defendants, Oakley and Harper, argued justification as a defence. The dispute centred around the alleged assault of Quarmby by Oakley and Harper, and whether their actions were justified under the circumstances.

The central legal issue for the court to determine was whether the defendants could successfully invoke the defence of justification in response to the plaintiff's claims of assault. This required the court to assess the nature of the alleged assault, the context in which it occurred, and whether the defendants' actions were proportionate and reasonable in the circumstances. Furthermore, the court had to consider the burden of proof regarding the defence of justification, specifically whether it rested on the plaintiff or the defendants.

The court examined the evidence and applicable legal principles to determine whether the defendants' actions were justified. The court held that the onus of proof for justification rested on the defendants. It was found that the defendants failed to demonstrate that their actions were necessary and reasonable under the circumstances. Consequently, the court ruled in favour of the plaintiff, finding that the defendants were liable for the assault. The court ordered Oakley and Harper to compensate Quarmby for any damages suffered as a result of the assault.

Orders