Wallin & Anor v Tiernan & Anor S98/2000 [2001] HCATrans 364 (10 August 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S98 of 2000

B e t w e e n -

GRAHAM CRAIG WALLIN

PAULA JACQUELINE WALLIN

Applicants

and

RODERICK DAVID TIERNAN

First Respondent

MICHAEL MORAHAN

Second Respondent

Application for adjournment

Application for special leave to appeal

GLEESON CJ

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 AUGUST 2001, AT 2.58 PM

Copyright in the High Court of Australia

MR G. WALLIN appeared in person.

MR R.D. TIERNAN appeared in person.

GLEESON CJ: Yes, Mr Wallin, what do you wish to say to us?

MR WALLIN: I filed an affidavit this morning in the Registry. I have a copy here for Mr Tiernan.

GLEESON CJ: Yes.

MR WALLIN: I am seeking an adjournment so I can refile. I will read the affidavit:

1. I am not a lawyer.

2. Because of sickness amoung other things, I ask the Court for an adjournment to allow G & P Wallin to refile the matters against our Local Council, for consolidation with this matter so we can put forward all our evidence to the Court that involves the same points of fact and law that shows all the respondents fraud.

GLEESON CJ: Now, when did you give Mr Tiernan notice of this application?

MR WALLIN: Just then, your Honour.

GLEESON CJ: About a minute ago.

MR WALLIN: Yes.

GLEESON CJ: Are you opposing this application?

MR TIERNAN: Yes, your Honour.

GLEESON CJ: Is there anything further you want to say in support of the application?

MR WALLIN: This application?

GLEESON CJ: Is there anything you want to say in support of your application for adjournment in addition to what you have put in the affidavit?

MR WALLIN: No, your Honour.

GLEESON CJ: The application is refused. Go ahead with your argument.

MR WALLIN: I will ask your Honours to turn to - - -

GLEESON CJ: Just excuse me for a moment. There is something I should have said a moment ago. There is a certificate here from the Deputy Registrar saying that she has been informed by the solicitor for the second respondent that the second respondent does not wish to be represented at the hearing of this matter and will submit to any order of the Court, save as to costs. Yes, go ahead, Mr Wallin.

MR WALLIN: Thank you, your Honour. I would like to note that the second respondent refused to state his case when he was requested. It may have been out of time, be that as it may. I will draw your Honours' attention to the application book and - - -

GLEESON CJ: Page 47 sets out your application. Is that right?

MR WALLIN: Yes, it does indeed, your Honour. I believe the Court of Appeal below failed to take into account relevant considerations. Within the supplementary application book at page 116 there is a copy of a transcript, which I prepared off the master tape - off a copy off the master tape and there were over 1,000 discrepancies within that transcript to the original transcript prepared by the Newcastle Court Reporting Service. Mr Tiernan was easily able to mislead his Honour Justice Sperling to the facts that occurred at that hearing by those omissions.

GLEESON CJ: Yes.

MR WALLIN: I believe that Mr Morahan was not a reasonable person and his decision he came to is manifestly unreasonable along with those of Justice Sperling, his Honour Justice Stein and also his Honour Justice Handley.

GLEESON CJ: Mr Wallin, could you look at page 45 of the application book? Do you see line 22:

FOR JUDGMENT SEE SEPARATE TRANSCRIPT

MR WALLIN: Yes, your Honour.

GLEESON CJ: Where is that?

MR WALLIN: I failed to admit it, your Honour. I failed to put it in.

GLEESON CJ: Have you a copy there?

MR WALLIN: I would have to look for it, your Honour. By memory, I do not think I would have.

GLEESON CJ: Yes, go ahead.

MR WALLIN: There has been no good faith shown towards myself, my partner, and my son, by the magistrate or Mr Tiernan. I would like to just point out page 160 in the supplementary application book at lines 1, 2, 3, 4 and 5. This is Mr Tiernan's evidence before his Honour Justice Job on 7 August 1998. Your Honour, I get concerned with the fact that I feel it is relevant in that we had a fencing dispute in relation to bamboo. The request was for sufficient dividing fence to be replaced. Now, that is - - -

GLEESON CJ: Can I interrupt you to ask a question again? What exactly were you asking the Court of Appeal to do?

MR WALLIN: Consolidation, your Honour, with two matters. This matter - to explain it briefly, the validity of Dr Tiernan's building relied on the height of a fence and the fence relied on the height of a building, for the building for its approval to be valid. Council were, under the Local Government Act 1991 and under the local approvals regulation, were supposed to consider fences. The Local Court - - -

GLEESON CJ: Well, perhaps I can ask you then, is the short answer to my question that what you are asking for is to be found on page 24 of your application book?

MR WALLIN: Among other things, your Honour, yes. Consolidation is what I really needed because the two matters rely on each other. They both rely on no good faith by both - respondent being Mr Tiernan for the fencing matter and the respondent being the council, the builder and Mr Tiernan for the building matter. I would like to note that it was the council's solicitor who sought to deem certificate of.....It was not my doing of - probably my doing in not chasing it up and working hard enough on it, but I am not a lawyer.

The gist of what I was just trying to get out a second ago about page 160, which was page 87 of the 7/08 transcript, Mr Tiernan there says:

Now that sufficient dividing fence was bamboo -

and also within the supplementary application book, prior to that date, back on Thursday, 10 July, in front of the magistrate, Mr Morahan, Mr Tiernan says, from line 50 to line 55:

To request that a bamboo be restored, we thought was a very tenuous argument. The council has requested that we concrete down the southern side of the property your Honour, and we've had letters from neighbours which I can tender to the Court, indicating that they were requesting the bamboo be removed because it was growing into their property.

Then I would like to direct your Honours to page 57 of the application book and Mr Tiernan's "FACTUAL ISSUES IN CONTENTION", the first paragraph or the last sentence of the first paragraph:

The bamboo was solely on the First Respondent's property and an old fence in existence was left undisturbed.

I would like to submit there is a contradiction there between page 160 and what he states within or on page 57 in the application book and another contradiction can be found in his statement of effect, which appears at page 22 in the supplementary application book. If your Honours get time I would appreciate if you have a read of those few documents I have just mentioned.

What the main thrust and gist of my argument for consolidation was and is can be found in the applicants' authorities under the New South Wales Dividing Fences Act No 72 and at section 4. I will quote the heading of the paragraph:

Determination as to "sufficient dividing fence"

4. In any proceedings under this Act, a Local Court or local land board is to consider all the circumstances of the case when determining the standard for a sufficient dividing fence for the purposes of this Act, including the following -

and then it has (a), (b), (c), (d), (e). But I take the gist of section 4 as "consider all the circumstances" and your Honours will note on page 4 of the supplementary application book is a Crown grant and within that Crown grant it talks about "free ingress and egress into and out of upon the said land". And there has been a wall placed on a boundary which is attached to my building.

If your Honours will have a look at the last page - this is not marked - in the back of the application book you will see a car at the eastern window of my cottage. I still have a view of the building. There has never been proper consideration given by the Local Court or the council to this building application. It is a fraud and I seek leave to appeal.

GLEESON CJ: Thank you.

MR WALLIN: Excuse me, your Honour. This is my former partner, Paula Wallin.

MS P.J. WALLIN: I am Paula Wallin, your Honours. I have not been involved in this for some time but there is an affidavit addressed to me that I would like to reply to if I could.

GLEESON CJ: You can say anything you would like to say. There is a time limit, of course, on argument for your side, but if you want to say something extra go ahead.

MS WALLIN: I would just like to reply to this. The first paragraph - is this in there? Page 57, your Honour, summary of argument. Your Honour, in "PART 11: FACTUAL ISSUES" he has stated that:

The bamboo was solely on the First Respondent's property -

on his own property. A building was approved based on the effect of the bamboo in which case it would have to be on our property. This fence has replaced the bamboo and we have never agreed to the fence nor have we ever agreed to the building.

The applicants have also sought to broaden the issue by linking the fencing dispute to a Building Dispute -

They are linked. It will not matter what sort of a fence is there, the building is still in dispute. It was not "exhaustively dealt with in the Land and Environment Court". There were relevant considerations that were not taken into account because we had been denied our right of reply because we have never been told what they were relying on.

In the Court of Appeal it was also a similar situation. It has only recently become apparent that the only thing that was being relied on was the fence, as other things have fallen away. So we have been denied our rights. It is a denial of justice. It really is. It has wound up where my child and I cannot live in our home. We have not been able to live there since 1997 because it has been rendered uninhabitable.

Justice Handley did say that there may be an appeal from the costs because by that time I had realised that this was like a fraudulent device, this fence. I do think there has been a lack of good faith which is shown by the fencing notice, which is on page 24. This came after the building application, a year later, and on page 25 there is a quote and on page 26 there is another quote and on page 27 there is another quote.

Now, I only remember that in the Local Court the magistrate insisted to me that for our order we had to have three quotes. You know, the court could not consider our application without three quotes and these are the same three quotes that the respondent used in front of Justice Sperling in the Court of Appeal and he reviewed the magistrate's decision for us anyway and I do not think anyone has ever noticed, but these are not three quotes for the same thing.

There is a difference in the length of the fence between the first two quotes, pages 26 and 27, and the last quote and I do not think that that is - I think that shows the lack of good faith and I do not know anything about the law but as I understand it, that if something is set out in the beginning to mislead - and these have been used to mislead, continually to mislead courts, every court really - the Land and Environment Court - it was not considered there. The judge did not want to consider a fence. The relevance of the fence was never allowed to be known to him and we could not do that because, at that point, we did not know.

So the other thing is, with this affidavit of Dr Tiernan's, he has said he denies the assertion that he trespassed on our property. As I say again, if this building relies on the effect of bamboo, then the bamboo is to have no greater adverse affect on our home than the bamboo had to be our bamboo and had to be on our land.

He states he was given permission for the taking of photographs. Now, my husband was working in central Queensland. The only other person to give permission was me and when Dr Tiernan knocked on my door asking to take photographs it was 9.00 am. I had been up studying. I was in my pyjamas and I asked him to put it in writing and to give me some notice. I did not know what it was about but that is what I asked. That was never done. Dr Tiernan went ahead and took photographs and submitted them to the council and they were never shown to me, nor was the statement of effect, nor was the shadow diagram - not shown to me during the assessment period. They only turned up in 1997, nearly a year later, when we had to subpoena the file and we could only get a subpoena if we went to the Land and Environment Court. So that was all withheld from us.

So we have never had a right of reply right through this and I just do not think that - I know the magistrate insisted. He said, "You have to have three quotes, Mrs Wallin" and I just think that to have two different lengths of fence - they are not three quotes for the same thing - and it matters, the length of the fence.

It has not worked, this device, because there is no way to block our view of this building. It does not comply with the reservations on the title without completely blocking all light to our living areas and there is no alternative floor plan. There are two blocks of land and our house is landlocked on its lot and a fence has been built to block off access to our front door. We have no way into our house. That is what this fence is for and to say that the building - in actual fact, for this building to have no greater adverse affect than the fence it should only be five foot high. It is three storeys from our floor level. It has rendered our house uninhabitable. My child and I have had nowhere to live. We are in our fourth year.

That is all I have to say, your Honour. Thank you.

GLEESON CJ: Thank you. Yes, take a seat, Mr Wallin.

There is a long and complex history of litigious dispute between these parties. The merits of that dispute are not in issue in the present application. The applicants seek special leave to appeal from the whole of the judgment of the Court of Appeal of New South Wales in matter No 40508 of 1998, given by Meagher and Sheller JJ and Davies AJ on 20 August 1999.

On that day, the Court of Appeal of New South Wales refused to make orders sought by the present applicants in a notice of motion filed on 15 December 1998. By that notice of motion, the applicants sought orders for review of the decision of Handley JA on 14 December 1998 to refuse a stay of proceedings for costs and for consolidation of two proceedings in the Court of Appeal.

No matter has been raised by the applicants that would warrant a grant of special leave to appeal from the decision of the Court of Appeal and the application is dismissed with costs.

The Court will adjourn.

AT 3.19 PM THE MATTER WAS CONCLUDED