Vinall v Gold - [2019] SADC 15

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
VINALL v GOLD & ANOR
[2019] SADC 15
Judgment of His Honour Judge Tilmouth
18 February 2019
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT
The applicant seeks the review of an order requiring her to pay a judgment debt within 21 days.
Held:
1. Such an order is amenable to revirew under s 38(6) of the Magistrates Court Act.
2. The Magistrates Court had the jurisdiction and power under the Fences Act to make the order for payment of money by the applicant in respect of a boundary fence.
3. No error is shown in the approach taken by the Magistrate.
Magistrates Court (Civil) Rules 2013 (SA) r 63; Magistrates Court Act 1991 (SA) s 3, s 38(6); Fences Act 1975 (SA) s 7, s 9, s 12(1), s 12(2), s 12(2)(j), 12(8)(a); Enforcement of Judgments Act 1991 (SA) s 5(1)(a); Hadeler v Antoniu (2019) 266 LSJS 193; Lawrence v Sambevski (1997) 189 LSJS 451; Vinall v Gold & Anor AMCCI-17-1104, referred to.

VINALL v GOLD & ANOR
[2019] SADC 15
Factual overview

This is an application for the review of an order made in the small claims jurisdiction of the Adelaide Magistrates Court on 11 October 2018, in which the applicant was ordered to pay a judgment debt of $1,440 within 21 days.
The judgment debt related to a fencing dispute over neighbouring premises in Seacliff. This was resolved in a judgment delivered on 11 May 2018 by a Magistrate, by which he eventually ordered the applicant to pay half the costs of a replacement boundary fence to the defendants (respondents) in the sum of $1,440. The ‘judgment’ on appeal relates to an order made by another Magistrate to set aside a warrant of arrest for the failure to pay that amount, ordering instead that the applicant pay that sum within 21 days, plus costs of $80.
The applicant complains that the Magistrate failed to make a proper assessment of her financial means, a denial of natural justice and procedural fairness, as well as pre‑judgment on the part of the Magistrate. She further claims the original judgment was made ‘ultra vires and without lawful authority’.
Statutory context
The jurisdiction entertained by the Magistrate with respect to the subject application, was under s 5(1)(a) of the Enforcement of Judgments Act 1991 (SA). This furnishes the power to the judgment court to order a judgment debt be paid ‘immediately or within a period specified by the court’. The interlocutory application to set aside a warrant of arrest issued against the applicant was brought pursuant to r 63 of the Magistrates Court (Civil) Rules 2013 (SA).
The jurisdiction to apply for review to the District Court is conferred by s 38(6) of the Magistrates Court Act 1991 (SA) to any ‘party dissatisfied with a judgment given in a minor civil action’. The jurisdiction vested in the Magistrates Court to adjudicate fencing disputes is conferred by s 9 of the Fences Act 1975 (SA). Neighbourhood disputes fall within the definition of a ‘small claim’ by virtue of s 3 of the Magistrates Court Act. Section 3(1) thereof defines a judgment to mean ‘a judgment, order or decision and includes an interlocutory judgment’. Hence the applicant is entitled to institute the within action even though the order under review was interlocutory in nature.
The nature of such reviews was discussed in Hadeler v Antoniu,[1] and Lawrence v Sambevski.[2]
[1] (2019) 266 LSJS 193, [2019] SADC 113.
[2] (1997) 189 LSJS 451.
The underlying facts
So as to understand the point as to the validity of the original judgment, it is necessary to outline the course and nature of the proceedings in the Magistrates Court. By her interlocutory application filed on 29 March 2017, Ms Vinall sought ‘an urgent order for the illegal fencing work currently being carried out since yesterday – to be stopped immediately’. The fence in question was the dividing fence between her property at 31 Maitland Terrace Seacliff and that of the respondents at no. 29. The application asserted the parties were ‘going through the Fences Act process’ and it further claimed she received advice from the Legal Services Commission that it was ‘totally illegal to build a fence next to a perfectly good existing fence along my driveway’.
This application followed a letter sent to her by the respondents of 7 March 2017 in which they asserted the existing fence failed to meet the ‘general standards of good fencing’ requirements of s 12(8)(a) of the Fences Act, it failed to meet their obligations as ‘responsible dog owners’ within the meaning of the Dog and Cat Management Act 1995 (SA), it failed to provide adequate privacy for them, and was in a poor state of repair. A different Magistrate made an order on 31 March 2017 for the erection of the colourbond fence on the property to ‘cease until further order’. A note of the order indicates the parties were to bring before the court ‘proposed fencing options … which include 1.6 m dark green tubular steel type’ or any other option they proposed.
The applicant subsequently drafted a proposal for Consent Orders which were not accepted, so the matter was set for trial by the same Magistrate on 4 May 2017. The trial was not reached and was listed again for 11 May before yet another Magistrate.
In an affidavit filed in support, Ms Vinall maintained that a new fence was unnecessary, that the existing fence was completely serviceable and in good state of repair and that a higher fence would adversely affect the value of her property.
In an ex tempore judgment, the Magistrate concluded:[3]
[5]     As I said, I do not consider the boundary fence between the two properties to be adequate, and I do not think the fence conforms to general standards of good fencing in the area. Ms Vinall says the fence has been there for 44 years, and has done its job. I have no way of knowing if it has done its job. What I do know is the fence is very low, it is old and is in a poor condition, and for this reason I do not consider it an adequate fence, or a fence which conforms with the standards in the area. In my view, it must be replaced. The issue is, with what should it be replaced?
[6]     The parties are agreed on one issue, which is, if a fence is to be erected it should be of a tubular design. Given the issues between the parties I think that is the best fence to be erected on the boundary. Unfortunately the parties do not agree on the height. As I have said, Ms Vinall originally proposed 0.9 metres, which in my view is too low. She may agree to 1.2 metres, which again, in my view, is too low. Ms McCloud wants 1.6 metres. There can be a case made for an even higher fence, but I think in the circumstances 1.6 metres would be appropriate.
[7]     There is an issue about where the boundary is. If this is still a live issue between the parties, then I must order a surveyor be instructed to determine the true boundary, although that is something the parties themselves must agree on. That is, they do not need to employ a surveyor if they can agree amongst themselves as to where the boundary is and where the new fence is to be erected. If they cannot agree that, then I will need to make orders.
[3]    Vinall v Gold & Anor AMCCI-17-1104.
The Magistrate hearing the matter proposed to make the following orders on 11 May:
1.   Given that HH considers the existing fence to be inadequate the current fence is to be removed.
2.   The current fence is to be replaced with a fence of tubular construction in colour green at a height 1.6 m.
3.   The whereabouts of the boundary is to be established by a survey to be performed by a properly and adequately credentialed surveyor. HH directs that John C Bested and Assoc Pty Ltd are to be instructed to perform that survey.
4.   HH orders Ms McCloud is to make contact with John C Bested and Assoc Pty Ltd and commission that company to perform the survey.
5.   The costs of the survey are to be met one half by Ms Vinall and one half by Ms McCloud.
6.   The existing fence shall be removed and the new fence installed by Reliance Fencing Products in accordance with the quotation provided to Ms McCloud by Reliance Fencing Products. HH notes the cost quoted is $2,180.
7.   Ms McCloud is to instruct John Bested and Assoc Pty Ltd 28 days from today.
8.   Ms McCloud is to instruct Reliance Fencing Products within the same 28 days and that the fencing work is to be commenced within 28 days of the receipt of the survey prepared by John C Bested & Associates.
9.   A copy of the survey is to be provided to Reliance Fencing Products.
10.   The cost of $2,180 quoted by Reliance Fencing Products should be paid one half by Ms Vinall and one half by Ms McCloud.
11.   Copy of today’s order to be sent by Registry to both parties.
Some time later the same Magistrate declined to make a further order requiring Ms Vinall to pay half the $900 cost of the survey contemplated in orders 5 reproduced above.
An application for the review of the primary order came before another Judge of this court on 20 October 2017, who affirmed the order of the Magistrate. In an ex-tempore ruling delivered on 20 October 2017 the Judge wrote:
There is no evidence before me to suggest that the learned Magistrate fell into error in making those findings. On the basis of what is depicted in the photographs I respectfully agree. I find that the existing fence is not an adequate fence as defined by the Fences Act in that it does not conform with the general standards of good fencing existing in the locality. Ms Vinall presented a careful written submission in support of this application for review. I have taken into account the matters raised by her. In my opinion the decision of the learned Magistrate should be affirmed.
On 15 December 2017 the respondents brought an interlocutory application in the Magistrates Court for the enforcement of the Magistrate’s judgment. As they had already paid the entire cost of $2,880 ‘for her portion of the fence’ they also sought the costs of a survey of $450. This application came before the Magistrate on 21 February 2018 who made the order in the first place, who adjourned it to 19 March 2018. On the latter date a hearing was vacated, the Magistrate warning Ms Vinall that it ‘needs to be dealt with … on the next occasion and would not be adjourned’ the matter being set for 18 April 2018.
The same Magistrate heard the matter on that date and accepted that the respondents had paid the cost of $2,880 pursuant to a tax invoice which was produced to the court. The court file note indicates the court ordered judgment for $1,440, ‘being half the amount paid by the respondents … pursuant to that invoice. The note further records:
Mr Gold and Ms McCloud have sent invoices to Ms Vinall requesting her to reimburse them for one half of the cost in relation to the fence and also asking her to pay one half of the survey fee. Ms Vinall has neglected to pay. To put the matter beyond doubt I am prepared to record a judgment for a specific amount in favour of the defendants so they may enforce the judgment against Ms Vinall.
I have explained to the defendants there is one complicating issue which relates to the survey cost of $900. One half has been paid by the defendants. The remaining amount is the subject of the invoice sent by John Bested and Associates against Ms Vinall because John Bested and Associates are not a party to these proceedings. It may be therefore that John Bested and Associates may have to issue a claim against Ms Vinall.
Without going into all the protracted details, it is apparent that an Investigation Summons was issued against Ms Vinall on 26 April 2018 and served upon her on 1 May. On 22 June 2018 an order for her arrest was made on this Warrant, but it was not enforced. Instead it was ordered that the applicant provide three months of bank statements and copies of medical bills. She filed on 26 June 2018 a financial statement which disclosed her income by way of a pension or benefit of $948 per fortnight. She claimed living expenses totalling $717 per fortnight. She next filed another interlocutory application on 27 August 2018 to set aside the warrant, whilst asking the court to make no order as to the payment of monies.
The matter came before the present Magistrate on 11 October 2018 when his Honour made an order setting aside the Warrant of Arrest, and ordering in lieu thereof that Ms Vinall to pay costs fixed at $80 and further that the whole judgment debt to be paid ‘forthwith within 21 days’.
At the hearing of 11 October 2018 Ms Vinall maintained her constant and enduring stance that the fence ‘was not on the boundary and she didn’t need a new fence’.[4] His Honour properly corrected her by stating the issue was no longer a fencing dispute as that was decided by a previous Magistrate and upheld by a District Court Judge, but a question of enforcement under the Enforcement of Judgments Act 1991.[5]
[4] T4.17-.18.
[5] T5.32-6.4.
His Honour pointed out to her that she had not paid monies according to a court order made 12 months previously. She responded with reference to her bank statements that she ‘did not have enough money to live on … I am borrowing’.[6] His Honour pointed out that she took a trip to Queensland the previous year during which she drew $1,000 from an ATM in Cairns in December.[7] When asked how long she sought in which to pay Ms Vinall responded ‘I’d need years because I’m borrowing money anyway and I can’t pay that back to pay my medical bills’.[8] Following a series of further exchanges between his Honour and Ms Vinall as to what the credit card records showed, including a limit of $24,000 and which she paid off on a regular monthly basis and that it had accrued over 100,000 points his Honour concluded:[9]
I’m sure you could get the money from somewhere. For a start you could borrow it on your credit card.
[6]    T4.38-5.8.
[7]    T5.9-.20.
[8]    T6.6-.10.
[9]    T6.26-.27.
It is clear his Honour formed the view that she was ‘ignoring the court order’ and ‘flouting the law’ because of it.[10] In the result an order was made that the judgment debt was to be paid forthwith ‘which means within 21 days’.[11]
[10] T7.3-.14.
[11] T12.5-.10.
The application for review
As stated earlier, the application for review essentially mounts a collateral attack on the validity of the original judgment made under the Fences Act in the first place. There are additional complaints that the Magistrate failed to afford ‘due process’, by failing to inquire into her financial capacity to satisfy the judgment debt.
Jurisdiction
The attack on the validity of the Fences Act judgment appears to be based on the fact that the original application effectively sought merely an injunction. Section 3 of the Magistrates Court Act defines applications under the Fences Act as a ‘minor statutory proceeding’. By bringing the application for interlocutory injunctive relief, Ms Vinall necessarily invoked the wide jurisdiction conferred on the Magistrates Court by s 12(1) of the Fences Act, which is triggered simply by ‘any difference or dispute … in relation to fencing work’.
Section 12(2) thereof proceeds to delineate the broad powers vested in the Magistrates Court to make orders with respect to fencing disputes, including those:
… that may be necessary or expedient to overcome difficulties ascertained during the process of fencing work.
It was the latter power in particular which empowered the Magistrates Court to make the original order, as it pertained to a ‘difference or dispute … in relation to fencing work’.
The assertion therefore that the original judgment creating the judgment debt was made ‘ultra vires and without any lawful authority’ is not arguable. It is beside the point that the proceedings were initiated by Ms Vinall, because once the Fences Act jurisdiction was invoked, the Magistrates Court then had the power to determine pursuant to s 12(2)(i) of the Fences Act:
… any difference or dispute … in relation to fencing work … in such manner as it considers just … to determine the cost of fencing work and the persons by whom … the cost is to be borne.
In any case the respondents invoked Fences Act proceedings by their proposal of 7 March 2017. It was further engaged by service on them by Ms Vinall of proposed draft minutes of order under s 7 of the Fences Act. This aspect of the complaint must therefore fail.
Capacity to pay
The second basis of review was the failure of the Magistrate to enquire properly and fairly into financial means. It is true enough that the Magistrate was direct in confronting Ms Vinall with the fact that she had over a period of 12 months refused to pay the debt. She protracted proceedings by failing to attend on a number of occasions claiming ill health, whilst at other times she merely sat in the public gallery.
All the same it is clear enough that his Honour based his decision on her use and her capacity to service her credit cards, according to the records produced by her. Her ‘Altitude Black Card’ statements for the period between mid-June and mid-July 2018, show an opening balance of $2,396.70 and payments by way of credits amounting to $2,452. Purchases in that period of $2,207, left a closing balance of $2,151.49. Expressed in another way, there were around $600 of expenditure each week. The opening balance of $2,396.70 was cleared by way of an automatic payment on 2 July 2018.
A separate Mastercard statement for the period between 27 March 2018 and 27 August 2018 records automatic payments of $2,151.49 on 31 July, of $2,396.70 on 3 July, $1,897.88 on 31 May 2018, $1,569.74 on 1 May and $860.46 on 4 April 2018.
A further Westpac ‘Basic Account’ for the period between 27 October 2017 and 8 August 2018, began with a running balance of $16,435.02 and ends with a balance of $2,113.83 on 7 August 2018, with numerous deposits in between times.
In a statement of ‘Proof of Income’ the applicant referred to a pension benefit as of 17 August 2018 of $894.40, plus a superannuation income of $240.77 per fortnight. She disclosed assets by way of real estate valued at $540,000, plus a motor vehicle valued at $2,000. In this she claimed on the other hand that fortnightly expenses were in the order of just under $3,000.
Based on the banking records, it was plainly open to his Honour to make the order he did. The records demonstrate the capacity to meet substantial financial commitments. Additionally it was clearly relevant to consider that the underlying problem was essentially Ms Vinall’s failure to accept the judgment and to make any genuine attempt to pay the debt.
Conclusion and orders
No error is demonstrated on the part of the Magistrate. The application for review is dismissed and the order of the Magistrate affirmed. There will be no order with respect to the contentious issue of the survey costs, in keeping with the order of the Magistrate who delivered the Fences Act judgment in the first place.