Clarence City Council v Howlin, Darryl Robert

• Jurisdiction: Tasmania
• Judge: Crawford CJ,Tennent J,Wood J
• Judgment Date: 22 December 2010
• Docket Number: 279/2009
• Court: Full Supreme Court
• Date: 22 December 2010

[2010] TASFC 10

[2009] TASSC 18

SUPREME COURT OF TASMANIA (FULL COURT)

Crawford CJ, Tennent and Wood JJ

279/2009

Clarence City Council

and

Howlin, Darryl Robert

Howlin, Helen Lorraine

Howlin

and

Brinckman

Howlin

and

Clarence City Council

REPRESENTATION:

Counsel:

Appellant: S B McElwaine

Respondent: In person

Commonwealth Bank of Australia v Quade (1991) 178 CLR 134, applied.

Greater Wollongong Corporation v Cowan (1955) 93 CLR 435, referred to.

Aust Dig Appeal and New Trial [89]

Appeal and New Trial — Appeal — General principles — Admission of fresh evidence — Other matters — Appeal heard — Orders made but not perfected — Application to re-open hearing on ground of fresh and new evidence — Documents not produced on request or on subpoena — Whether hearing should be re-opened — Whether documents would have affected the outcome of the proceedings — Whether in the interests of justice to re-open.

Orders of the Court

• 1 That the application filed by the respondents on 11 October 2010 is dismissed.

• 2 That the respondents pay the council's costs of the appeal to this Court, including the costs of the interlocutory application filed by the respondents on 11 October 2010, and of the application for non- party costs filed on 14 January 2008.

REASONS FOR JUDGMENT

FULL COURT

Crawford CJ

1 The respondents seek to re-open the hearing of an appeal after the Court published its reasons for allowing the appeal and announced its orders, but before the orders have been perfected by filing and sealing.

2 In 2005, the respondents sued Mrs Margaret Brinckman for a declaration that all of Marsh Street, Opossum Bay, was a public highway.

3 The action was heard by Slicer J over four days in March 2007. On 14 August 2007, the judge ordered that there be judgment for the respondents, making the declaration that was sought. See Howlin v Brinckman [2007] TASSC 59. There was no appeal.

4 The respondents sought an order that Mrs Brinckman pay their costs of the action. In December 2007, the judge dismissed the application and ordered that the parties pay their own costs of the action. See Howlin v Brinckman (No 2) (2007) 17 Tas R 99. Again, there was no appeal.

5 On 14 January 2008, the appellant council became involved in the action for the first time when the respondents filed an application seeking ‘an order that the Clarence City Council pay indemnity costs incurred by the plaintiffs [the respondents] of and incidental to the action’. The application was heard by the same judge on six dates in August 2008. It was opposed by the council. On 26 March 2009, the judge found partly for the respondents and ordered that the council pay the respondents' taxed costs of the action against Mrs Brinckman from 11 December 2005, the date upon which the council's Mayor was informed by the respondents of the commencement of the action against Mrs Brinckman. See Howlin v Brinckman; Howlin v Clarence City Council [2009] TASSC 18.

6 The council appealed against that order to this Court. The appeal was heard on two dates in November 2009. On 23 April 2010, the Court published its reasons for concluding that the appeal should be allowed, and that there should be an order setting aside the judge's order that the council pay the respondents' costs of the action against Mrs Brinckman from 11 December 2005, and an order dismissing the application of the respondents against the council for costs. See Clarence City Council v Howlin[2010] TASFC 2. The Court ordered accordingly, but the orders were not perfected by the council filing, and the Court sealing, the formal order embodying them.

7 The council applied for an order that the respondents pay its costs of the appeal, together with the costs of the application for costs that was heard by Slicer J. The setting of the hearing date of that application was delayed. Eventually it was fixed for 13 October.

8 Two days earlier, on 11 October, the respondents filed an application by which they sought to re-open the appeal for further evidence and argument. They claimed to have found relevant documents that previously were not available to them and which were material to the appropriate outcome of the appeal. On 13 October, the Court heard the application and also the council's application for costs, and reserved its decision.

9 It is to be noted that the declaration in the respondents' action against Mrs Brinckman, that all of Marsh Street is a public highway, is binding only on the parties to that action, that is, the respondents and Mrs Brinckman. The council is not bound by it. Clarence City Council v Howlin[2010] TASFC 2 at par[104]. If the respondents had sued the council as well as Mrs Brinckman, it would have been bound by the declaration. During the course of the most recent hearing, the Court learned that recently, the council commenced an action against the respondents in which it seeks an order that Marsh Street is not a public highway.

10 It is also to be noted that as expressed in their statement of claim, the respondents based their action against Mrs Brinckman for a declaration that Marsh Street was a public highway on a claim that it had become and remained ‘a public highway by dedication of the right of passage to the public by the owner of the soil and acceptance, that is, user of that right by the public’. At the recent hearing before the Court, the respondents emphasised that was the basis of their action against Mrs Brinckman, referring to it as a case of common law dedication as distinct from a statutory dedication.

11 In connection with that aspect, it has always been the case of the council since it was brought into the proceedings, by the respondents' application against it for the costs of the Brinckman action, that there has been no dedication of the street as a public highway. To the contrary, the council has argued that because the formal requirements of statutes for dedication have not been observed, there could be no dedication, not even a dedication at common law as claimed by the respondents.

12 By way of examples only, an argument of the council has been that from 24 September 1947, when the land became part of a town for the purposes of the Towns Act 1934, until 1 January 1964, Marsh Street could not be constructed, opened or used as a highway intended for the use of the public generally without compliance with the Towns Act, s48. It required a scale plan showing the new street, its width and direction, and the proposed provision for its drainage, to be submitted to, and approved by, the council. It was the council's case that during that time, a dedication pursuant to merely common law principles, that is, one based on usage, was not possible without compliance with those formalities.

13 Similarly, it has been the appellant's case that from the commencement of the Local Government (Highways) Act 1982, s7, on 1 September 1983, until the present day, it has not been possible for there to be a common law dedication of the land as a highway other than in accordance with formalities required by the section, including approval of the dedication by the council under its corporate seal. No such formalities have taken place. It follows from that, it has been argued, that findings of Slicer J, such as that mail delivery to Marsh Street commenced in 2000, rubbish removal in 2001, and street lighting in 1987, could not have tipped the scales in favour of a common law dedication, as his Honour determined, because there was no compliance...