Sherman v Condon - [2014] QDC 189

DISTRICT COURT OF QUEENSLAND

CITATION:

Sherman v Condon [2014] QDC 189

PARTIES:

SHELDON ROBERT SHERMAN
(first applicant)

and

DOROTHY SHERMAN
(second applicant)

v

ALISON JOY CONDON
(respondent)

FILE NO/S:

No D102 of 2014

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Maroochydore District Court

DELIVERED ON:

9 September 2014

DELIVERED AT:

Maroochydore District Court

HEARING DATE:

8 August 2014

JUDGE:

Long SC DCJ

ORDER:

Application dismissed.

CATCHWORDS:

TORTS – TRESPASS – TRESPASS TO LAND AND RIGHTS OF REAL PROPERTY – application to restrain trespass to land – where an actual, threatened or apprehended trespass may be restrained – where trespass relied upon by the applicant is a past and completed occurrence rather than a continuing one – whether any threatened or apprehended trespass is established to warrant restraint – where respondent is already subject to a Peace and Good Behaviour order in relation to the applicant, including a restraint on entry to the land – whether further restraint would be warranted as an exercise of discretion

PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS – CIVIL JURISDICTION – PRACTICE – OTHER MATTERS – where applicants forwarded supplementary written submissions to Court – where no leave was granted to file any further submissions – where supplementary submissions were apparently forwarded without any reference to or knowledge of the respondent – whether relisting of the matter on notice to the respondent is required

Australian Solicitors Conduct Rules
Barristers’ Conduct Rules
Civil Proceedings Act 2001, s9
District Court Act 1967, s 68, s 69
Legal Profession Act 2007, s 219, s 220
Peace and Good Behaviour Act 1982
Practice Direction 2 of 2008

Baker’s Creek Consolidated Gold Mining Co v Hack (1894) LR (NSW) Eq 207

Briginshaw v Briginshaw (1938) 66 CLR 336
Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246

Cowell v Rosehill Racecourse Co Ltd [1937] HCA 17, (1937) 56 CLR 605

Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318
Ex-Parte Davis (1871) 35 J.P. 551
Fanigun Pty Ltd v Woolworths Ltd & Anor [2006] QSC 28

Halliday v Neville (1984) 155 CLR 1

Hampton v BHP Billiton Minerals Pty Ltd (No 2) [2012] WASC 285
Hines v Hines [1999] QCA 149
In the matter of an application by the Chief Commissioner of Police (Vic) [2005] HCA 18; (2005) 79 ALJR 881
Laidlaw v Hulett, Ex-Parte Hulett [1998] 2 Qld R 45
Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204
Plenty v Dillon (1991) 171 CLR 635
Robson v Hallett [1967] 2 QB 939
Rodrigues v Ufton (1894) 20 VLR 539
Wilson v Marshall [1982] Tas R 287

COUNSEL:

S. Fisher for the applicant

No legal representation for the respondent

SOLICITORS:

Romans and Romans Lawyers for the applicant

No legal representation for the respondent

Introduction

Pursuant to an Originating Application filed on 20 June 2014, the applicants seek that the respondent be restrained from entering a residential property at 10 Alpinia Street, Sippy Downs (“the Property”).

The…

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 Sherman v Condon

Details

AGLC: Sherman v Condon [2014] QDC 189
Case: [2014] QDC 189
Decision Date: 9 September 2014

CaseChat Overview and Summary

In the matter of Sherman v Condon, the applicant sought an injunction to prevent the respondent from trespassing on their property. The case was heard in the District Court of Queensland. The applicant, Sherman, claimed that the respondent, Condon, had trespassed on their land in the past and that there was a likelihood of future trespass. Sherman also argued that the respondent was already subject to a Peace and Good Behaviour order, which restricted their entry to the property. They sought further restraint as an exercise of the court's discretion.

The primary legal issues before the court were whether the respondent's past trespass constituted a continuing trespass warranting restraint and if further restraint was necessary given the existing Peace and Good Behaviour order. Additionally, the court needed to determine whether the applicant's supplementary written submissions, forwarded without the respondent's knowledge, required the matter to be relisted for proper notice. The court considered the balance between the applicant's need for protection and the respondent's rights, as well as the procedural fairness in handling the supplementary submissions.

The court dismissed the application, finding that the respondent's past trespass did not constitute a continuing trespass warranting further restraint, particularly given the existing order. The court also held that no further restraint was warranted as an exercise of discretion. Concerning the supplementary submissions, the court concluded that no relisting was necessary, as the respondent had not been prejudiced by the lack of notice. The court found that the application should be dismissed without further procedural steps.

Orders

Orders of the court

Application dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Sherman v Condon [2014] QDC 189
PARTIES:	SHELDON ROBERT SHERMAN (first applicant) and DOROTHY SHERMAN (second applicant) v ALISON JOY CONDON (respondent)
FILE NO/S:	No D102 of 2014
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Maroochydore District Court
DELIVERED ON:	9 September 2014
DELIVERED AT:	Maroochydore District Court
HEARING DATE:	8 August 2014
JUDGE:	Long SC DCJ
ORDER:	Application dismissed.
CATCHWORDS:	TORTS – TRESPASS – TRESPASS TO LAND AND RIGHTS OF REAL PROPERTY – application to restrain trespass to land – where an actual, threatened or apprehended trespass may be restrained – where trespass relied upon by the applicant is a past and completed occurrence rather than a continuing one – whether any threatened or apprehended trespass is established to warrant restraint – where respondent is already subject to a Peace and Good Behaviour order in relation to the applicant, including a restraint on entry to the land – whether further restraint would be warranted as an exercise of discretion PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS – CIVIL JURISDICTION – PRACTICE – OTHER MATTERS – where applicants forwarded supplementary written submissions to Court – where no leave was granted to file any further submissions – where supplementary submissions were apparently forwarded without any reference to or knowledge of the respondent – whether relisting of the matter on notice to the respondent is required Australian Solicitors Conduct Rules Barristers’ Conduct Rules Civil Proceedings Act 2001, s9 District Court Act 1967, s 68, s 69 Legal Profession Act 2007, s 219, s 220 Peace and Good Behaviour Act 1982 Practice Direction 2 of 2008 Baker’s Creek Consolidated Gold Mining Co v Hack (1894) LR (NSW) Eq 207 Briginshaw v Briginshaw (1938) 66 CLR 336 Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246 Cowell v Rosehill Racecourse Co Ltd [1937] HCA 17, (1937) 56 CLR 605 Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 Ex-Parte Davis (1871) 35 J.P. 551 Fanigun Pty Ltd v Woolworths Ltd & Anor [2006] QSC 28 Halliday v Neville (1984) 155 CLR 1 Hampton v BHP Billiton Minerals Pty Ltd (No 2) [2012] WASC 285 Hines v Hines [1999] QCA 149 In the matter of an application by the Chief Commissioner of Police (Vic) [2005] HCA 18; (2005) 79 ALJR 881 Laidlaw v Hulett, Ex-Parte Hulett [1998] 2 Qld R 45 Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 Plenty v Dillon (1991) 171 CLR 635 Robson v Hallett [1967] 2 QB 939 Rodrigues v Ufton (1894) 20 VLR 539 Wilson v Marshall [1982] Tas R 287
COUNSEL:	S. Fisher for the applicant No legal representation for the respondent
SOLICITORS:	Romans and Romans Lawyers for the applicant No legal representation for the respondent