Appeal to the High Court in relation to chicken-keeping in Brisbane

Appeal to the High Court in relation to chicken keeping in Brisbane page 3.

Transcript

[Page 1.]

[underlined] IN THE HIGH COURT OF AUSTRALIA

[underlined] QUEENSLAND REGISTRY

[underlined] On Appeal from the Supreme Court of Queensland[.]

[underlined] BETWEEN

VALERIE EMILIE MARIANNE RUTHNING

EDITH SOPHIE DORIS RUTHNING and

WANDA HILDEGARDE EUGENIE RUTHNING

[underlined] Appellants

and

THOMAS TARRAN FERGUSON

[underlined] Respondent.

I[,] EDITH SOPHIE DORIS RUTHNING [underlined] of Dornoch Terrace West End South Brisbane in the State of Queensland Spinster being duly sworn make oath and say: -

1. I am one of the abovenamed appellants.

2. In the action brought in the Supreme Court of Queensland by the abovenamed appellants against the abovenamed respondent being No. 553 of 1929 the said appellants claimed against the said respondent: -

"An injunction to restrain the defendant his agents or servants from keeping fowls and particularly roosters or allowing such fowls and/or roosters to be kept on the premises occupied by him at Dornoch Terrace and Loch Street South Brisbane in such a manner and/or place and/or under such conditions and/or of such a nature as to cause a nuisance or permit a nuisance to be caused through the noise made by such fowls and/or roosters to the plaintiffs who reside in and occupy the premises adjoining the said premises occupied by the defendant."

3. Judgment was given for the said appellants by the Honourable Mr. Justice E.A.Dpuglas [sic] for :-

(a) An injunction restraining the respondent his agents or servants from keeping roosters or allowing such roosters to be kept on the premises occupied by the respondent at Dornoch Terrace and Loch Street[.]

[dividing line.]

[underlined:] FIRST SHEET

Brisbane this twenty-eighth [sic] day of February 1930.

E.S.D. Ruthning

[underlined] Deponent[.]

Arthur A. Joyce J.P.

[underlined] A Justice of the Peace.

[Page 2.]

South Brisbane in such manner and place and under such conditions as to cause a nuisance to the appellants.

(b) Judgment for the payment by the respondent to the appellants of costs of the action fixed at forty guineas.

4. From this Judgment the respondent appealed to the Supreme Court of Queensland and such Appeal was heard at the Sittings of the Full Court of Queensland held at Brisbane on the Twelfth day of February one thousand nine hundred and thirty.

5. Judgment was given by the said Full Court of Queensland for the respondent (the appellant in the appeal to the Full Court of Queensland) as follows: -

That the said Judgment be set aside and that the respondent (the defendant in the original action) recover against the appellants (the plaintiffs in the original action) his costs of the action fixed at forty guineas and also his costs of the appeal to be taxed.

6. The property situate at Dorncoh [sic] Terrace West End South Brisbane aforesaid owned and occupied by the appellants and adjoining the property owned and occupied by therespondent [sic] is of the approximate value of Three thousand two hundred and fifty pounds.

7. The matter at issue between the parties involves the health of the appellants and amounts to and is of the value of more than three hundred pounds and further involves directly and indirectly a question respecting property and the right of the appellants to reside on the said premises free from the intolerable noises complained of which property and right are of the value of three hundred pounds or more. The appell-ants [sic] reside on the said property and have resided there for many [years.]

[dividing line,]

[underlined] SECOND SHEET

Brisbane this twentyeighth [sic] day of February 1930.

E.S.D. Ruthning

[underlined] Deponent[.]

Arthur A. Joyce J.P.

[underlined] A Justice of the Peace.

[Page 3.]

[sentence continued from page 2] years. At the present time it would be almost impossible by reason of the depressed state of the real property market to sell the said property except on very long terms and at a price more than three hundred pounds below the value of the said property or to secure a suitable tenant for the said premises at a rental approaching the rental vale thereof[.]

SIGNED AND SWORN [underlined] by the abovenamed deponent EDITH SOPHIE DORIS RUTHNING [underlined] at Brisbane aforesaid this twenty eighth day of February 1930 Before me

Arthur A. Joyce J.P.

[underlined] A Justice of the Peace.

[typed along the right side of above paragraph] E.S.D. Ruthning.

About this record

This is a three-page typewritten deposition made by Edith Sophie Doris Ruthning, one of three sisters, outlining the legal circumstances leading to a judgment being given against them in the Supreme Court of Queensland in relation to the noisy fowls and roosters kept by their neighbour Thomas Tarran Ferguson. She also identified that the matter at issue between the neighbours was of a value greater than £300. The deposition was sworn before Justice of the Peace, Arthur A Joyce, on 28 February 1930 and forms part of a High Court of Australia file, No. 1 of 1930.

Educational value

This deposition was part of the paperwork for the Ruthning sisters' appeal to the High Court of Australia to try to silence their neighbour's crowing roosters and it illustrates how neighbourhood disputes can escalate to the highest court in the nation. By providing the deposition, the sisters were giving notice of an appeal against a decision in favour of their poultry-keeping neighbour Thomas Ferguson that had been heard in the Supreme Court of Queensland on 12 February 1930.
Although the roosters were probably a long-running issue, once the Ruthning sisters took their neighbour to court, matters escalated quickly and expensively, as described here. In 1929 the sisters were successful in gaining an injunction against Ferguson and costs of 40 guineas. Ferguson then successfully appealed to the full Supreme Court and was awarded costs plus the recovery of the 40 guineas. The High Court appeal followed, with the sisters seeking full costs.
By 1930 the High Court of Australia had a wide-ranging appellate jurisdiction and a heavy appellate case load, in addition to its work of interpreting Australia's Constitution. The High Court had been formally established in 1901, as provided for by Section 71 of the Constitution, with the dual functions of being Australia's final court of appeal and its Constitutional court.
It is clear from the deposition that the Ruthning sisters were appealing to the High Court 'as of right' rather than asking for leave or permission to appeal. The right that allowed them to appeal was the proprietary right to reside at their home 'free of the intolerable noises complained of'. In 1930 appeals as of right to the High Court could only proceed if the value of the right at stake was more than £300, hence the reference to this figure. In 1984 such appeals were abolished.
Although initially caught up in the escalating appeal process, the Ruthning sisters probably received advice that a High Court appeal would either be very expensive or unlikely to succeed and on 14 March 1930 they abandoned their appeal. Substantially out of pocket from their neighbour's successful Supreme Court appeal, they would henceforth have had to put up with the roosters.

Acknowledgments

Related themes

Theme

Legislation

Discover how laws have been developed, discussed and implemented, directly affecting people and communities in Australia.

Theme

People crossing the road at Circular Quay, Sydney.

Society and culture

Discover how Australian society and culture have been shaped by legislation, changing community attitudes and an increasingly connected world.