Allan Jeffrey Brown v James F Doyle & Ors

Supreme Court of NSW|2010-04-23|Before: Hidden J, Centre J

CITATION : Allan Jeffrey Brown v James F Doyle & Ors [2010] NSWSC 1269

The appeal is allowed. DECISION : 2. The matter is remitted to the local land board for determination according to law. For the purpose of that determination the land board must be differently constituted from that which made the decision the subject of the appeal. 3. The Doyles must pay the plaintiff's costs of the appeal, but I grant to each of them a certificate under s 6 of the Suitors' Fund Act 1951.

CATCHWORDS : DIVIDING FENCES - appeal against decision of local land board - whether retaining edge a "fence" for the purpose of Dividing Fences Act - determination whether vegetative barrier a sufficient dividing fence - denial of procedural fairness - whether Court should determine merits of the matter or remit it to land board

Dividing Fences Act 1991 LEGISLATION CITED : Crown Lands Act 1989 Supreme Court Act 1970 Suitors' Fund Act 1951

Kontikis & Anor v Schreiner & Ors (1989) 16 NSWLR 706 Carter v Murray [1981] 2 NSWLR 77 CASES CITED : Warringah Properties Pty Ltd v Babij (Snr) & Anor [2006] NSWSC 702 Alwiah v Watts & Anor [2004] NSWSC 948 Loudoun-Shand & Anor v Jadasi Investments Pty Ltd [2007] NSWCA 316

Allan Jeffrey Brown (Plaintiff) PARTIES : James F Doyle (1st Defendant) Anne T Doyle (2nd Defendant) Local Land Board for the Land District of Taree (3rd Defendant)

COUNSEL : Ms G Watts (Plaintiff) Self represented (1st Defendant)

Ms G Watts, Stacks/Forster (Plaintiff) SOLICITORS : Mr L Hagan, Baker & Borthwick (1st Defendant) I V Knight, Crown Solicitor (Third Defendant)

LOWER COURT JURISDICTION : Local Land Board for the Land District of Taree

LOWER COURT JUDICIAL OFFICER : Chairman John Callaghan

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2009/298026 Allan Jeffrey Brown v James F Doyle & Ors

JUDGMENT 1 HIS HONOUR: The plaintiff, Allan Jeffrey Brown, and the defendants, James Doyle and his wife, Anne Doyle, occupy adjoining properties at Tuncurry. Their dispute comes to this Court as an appeal against a decision of the local land board at Taree concerning the fencing of the boundary between the two properties. At the relevant time there was no more than a vegetative barrier, that is, a mound of dirt and number of trees, on the boundary. Mr Brown wanted to construct a colorbond fence. Mr and Mrs Doyle did not, taking the view that the vegetative barrier was adequate and appropriate. 2 It was the Doyles who sought the resolution of the dispute by the land board, invoking the board's jurisdiction under the Dividing Fences Act 1991. There is no need to examine that Act at any length. It is sufficient to say that it deals with the liability of the owners of adjoining properties in respect of fencing on their common boundaries, and provides for the resolution of disputes between them. By s 12(1), adjoining owners may attend a Community Justice Centre in an attempt to settle a dispute but, if agreement cannot be reached, either owner may apply to the Local Court or a local land board "for an order determining the manner in which the fencing work (if any) is to be carried out": s 12(2). A local land board is a board constituted under the Crown Lands Act 1989 for the district in which the dividing fence concerned is located: s 3. Section 13(1) confers jurisdiction on the Local Court or a local land board "to hear and determine any matter arising under" the Act. 3 The Doyles sought an order that no fence be erected on the common boundary. The matter was heard on 24 August 2009. The board announced its decision that day and later furnished written reasons to the parties. The Doyles were largely successful. The board decided that the colorbond fence sought by Mr Brown was inappropriate, and ordered that a "retaining edge", consisting of two railway sleepers on their edge, be installed along the line of the boundary. Further consequential orders were made which need not be recited. 4 Mr Brown has appealed to this Court against the board's decision under s 19(2) of the Dividing Fences Act, which creates a right of appeal in a party to proceedings under the Act "who is dissatisfied with the order of the Local Court or a local land board as being erroneous in point of law …". The land board was joined as a defendant and entered a submitting appearance. Before the board, and in this Court, the Doyles' case was put by Mr Doyle without legal representation. Mr Brown was represented by Ms Watts, a Taree solicitor. 5 There were three members of the board, the chairman being a solicitor. The proceedings were conducted relatively informally, probably because the Doyles were unrepresented. Mr Doyle did not give evidence, but at the outset of the hearing he explained his case, largely in response to questions by the chairman. Mr Brown did give evidence, but Mr Doyle did not cross-examine him. Final addresses were presented firstly by Ms Watts, on behalf of Mr Brown, and then by Mr Doyle. The members of the board then inspected Mr Brown's property, in the presence of the parties, and the chairman announced their decision upon the resumption of the hearing. 6 The mound of dirt and trees on the boundary between the properties was capable of constituting a "fence" for the purpose of the Act. In s 3 that term is defined expansively and includes "a hedge or similar vegetative barrier". The Doyles' objection to a colorbond fence was primarily aesthetic. Put shortly, Mr Doyle told the board that a colorbond fence would be both ugly and unnecessary, and that a line of trees was sufficient to preserve Mr Brown's privacy. It was common ground that the erection of a colorbond fence would necessitate removing the mound of dirt and the trees. 7 Also put shortly, it was Mr Brown's case that for a number of reasons he required fencing with a measure of security which only colorbond could provide. He lived alone and, due to a disability, was confined to a wheelchair. He needed to be able to keep trespassers and feral animals from gaining access to his property. He wanted a dog but, because of his disability, he would not be able to walk it. It would be confined to the property and would need a secure fence to keep it in. For these reasons, a post and rail fence was not an option. 8 Two years previously, Mr Brown was considering sub-dividing his property and for that purpose had it surveyed. In preparation for the survey, he arranged with a friend to clear the boundary between the two properties. It was his evidence that this involved no more than clearing some scrub and removing a couple of trees which, in any event, were on his side of the property. As I understand it, Mr Doyle disputed that that was the extent of the clearing. 9 However that may be, Mr Brown gave evidence that in September 2007, during the clearing process, Mr Doyle abused him and threw things at him. Mr Doyle sought an apprehended violence order against him in the Local Court. The matter was resolved after mediation, when the two men entered into a written agreement to co-operate in achieving a "well defined boundary". This was to be effected by the erection of a "timber retaining edge" together with the planting of a "green screen". 10 There is no need to relate what happened thereafter. It is sufficient to say that that co-operative effort was not undertaken but, clearly enough, the agreement was the source of the order which the board made. It will be necessary to examine more closely the terms of this order. In its reasons, the board found that a colorbond fence was out of character in the area, which was described as "semi-rural, residential", and that the mound of dirt with trees on it was in character and provided privacy between the parties.

The appeal 11 Ms Watts argued a number of grounds of appeal, all of which were said to raise questions of law. The first ground certainly does, and I find it to be determinative of the outcome. The ground is that the board did not have jurisdiction to make the order it did. 12 Mr Brown gave evidence that at the time of the 2007 mediation the mound of dirt on the boundary was flowing onto his land. This, no doubt, was the reason for the agreement to erect a timber retaining edge along the boundary. It would seem that the problem persisted. The board recorded in its reasons that, when the property was inspected, it was observed that some of the dirt from the mound had washed down onto it. Although it is not spelled out in the reasons, clearly enough this was also the basis for the order that a retaining edge be installed. The board's primary order was as follows: "That a retaining edge, consisting of 2 railway sleepers on their edge be installed along the line of the common boundary of 56m. The sleepers are to be butted up against the trees that are located on the common boundary. The sleepers to be held in place by treated timber posts. Minimal clearing of soil and branches by the fencing contractor is permitted to achieve a satisfactory base for the sleepers and access." 13 Section 14(1) of the Dividing Fences Act sets out the matters about which the Local Court or a local land board may make an order. Relevantly for present purposes, they include "the fencing work to be carried out (including the kind of dividing fence involved)": subs (1)(b). "Fencing work" is defined in s 3, and includes the "construction … of the whole or part of a dividing fence". "Dividing fence" is defined as "a fence separating the land of adjoining owners …". I have earlier referred to the broad definition of "fence", also in s 3. However, that definition expressly excludes "a retaining wall …". 14 No submissions were made about the rationale of that exclusion. It can probably be found in the decision of the Court of Appeal in Kontikis & Anor v Schreiner & Ors (1989) 16 NSWLR 706, a case dealing with the predecessor of the present Act, but it need not be explored. The opening words of the definition of "fence" in the present Act are "a structure, ditch or embankment, or a hedge or similar vegetative barrier, enclosing or bounding land ... ." It is the function of enclosing or bounding land which characterises such a structure or barrier as a fence. So much emerges in the judgment of Mahoney JA, with whom Hope and Priestley JJA agreed, in Kontikis v Schreiner at 709 - 10. Mahoney JA distinguished between a fence and a retaining wall by reference to the judgment of McLelland J in Carter v Murray [1981] 2 NSWLR 77 at 79, where his Honour noted that the retaining wall in question in that case "provides structural support for other material on and below the surface .... ." 15 Kontikis v Schreiner was considered by Malpass AsJ in Warringah Properties Pty Ltd v Babij (Snr) & Anor [2006] NSWSC 702, a decision concerned with the present Act. His Honour said at [20]: "The question of what is a "retaining wall" has been little argued. No definition was presented by counsel. There are dictionary meanings. They are to the effect of it being a wall built to hold back or support material (including earth and water)."

At [21], his Honour added that there may be "overlapping of purposes", and that a structure erected for the purpose of separating properties may be a fence even though it also served other functions. His Honour added that even if such a structure had a support function, a court would not be precluded from finding that it was a fence, citing Kontikis v Schreiner at 711 - 12. 16 It is clear that in the present case the retaining edge, constituted by railway sleepers on their edge, was for the purpose only of containing the dirt from the mound. The separation of the adjoining properties was no part of its function, which the board appears to have seen to be met by the mound and the trees upon it. Accordingly, the retaining edge is best described as a "retaining wall", as that expression is used in the statutory definition of "fence" and is excluded from that definition. It is certainly not a fence. The board had no jurisdiction to make that order, and it must be set aside. Of course, it was open to the parties to agree to construct such a retaining edge but it was not open to the board to order it. 17 This conclusion is sufficient to entitle Mr Brown to the relief he seeks. I should add, however, that the board went on to order that the parties were equally liable to pay half the cost of the erection of the retaining edge, together with ancillary orders, including the obtaining of quotes within a certain timeframe. Section 6 of the Act establishes the liability of an adjoining owner to contribute to the cost of fencing work "where there is no sufficient dividing fence ...", and s 7 deals generally with contributions by adjoining owners for the carrying out of fencing work. Section 4 provides for the determination by the Local Court or a land board of the standard for a sufficient dividing fence in a particular case. 18 In Alwiah v Watts & Anor [2004] NSWSC 948, Malpass AsJ (then Malpass M) said at [10]: "The content of the Act demonstrates that jurisdiction to make orders is dependant upon a finding that there is an insufficient dividing fence between the adjoining lands. Unless that finding is made, no orders can be made. Such a finding gives rise to the liability referred to in s 6 and enables the making of orders pursuant to s 14." 19 In the present case the board did not make a finding, as required by the Act, about the sufficiency or otherwise of the existing vegetative barrier. It did no more than observe, as I have noted above, that that barrier accorded with the character of the area and provided privacy. Among the matters to be considered when determining the standard of a sufficient dividing fence under s 4 are: " ... (b) the purposes for which the adjoining lands are used or intended to be used, (c) the privacy or other concerns of the adjoining land owners, ... " 20 Relevant to those considerations were the reasons, summarised above, which Mr Brown advanced for his desire for a colorbond fence. The board recorded those reasons but, apart from privacy, made no finding about them. They were matters which needed to be evaluated for the purpose of determining the sufficiency of the existing fence, and in deciding what order, if any, should be made. In this respect also the board fell into error. 21 Other grounds of appeal complain of a denial of procedural fairness in the manner in which the matter was conducted before the board. Strictly, they need not be decided but it is desirable that I say something about them. 22 As I have said, the hearing before the board began with Mr Doyle explaining informally, and not under oath, what his case was. There was then the following exchange, initially between the chairman and Mr Doyle and then between the chairman and Ms Watts: "CHAIRPERSON: Well, we'll leave it at that for the moment. I'll get Ms Watts to lead all the evidence or give the evidence as the case may be. MS WATTS: Yes, Mr Chairman. CHAIRPERSON: And then you get a chance to come back and ask any further questions as you want to at the end of that. All right. And yes we normally go out to have a look at it. All right. Yes, Ms Watts? MS WATTS: Yes, Mr Chairman, is it appropriate for me to ask some questions of Mr Doyle at this point or would you prefer yourself to take care of all that? CHAIRPERSON: I'd like you to lead the evidence. MS WATTS: Lead my evidence? CHAIRPERSON: Yes, lead your evidence and we'll take it from there." 23 Ms Watts then called Mr Brown. At the end of his evidence-in-chief, Mr Doyle declined an invitation by the chairman to cross-examine him. That was the close of the evidence. In the event, Mr Doyle gave no evidence and Ms Watts did not have the opportunity to cross-examine him. It may be that she should have renewed her application to cross-examine him, even at that late stage, but I can understand that she thought that that opportunity passed after the exchange which I have quoted. However that may be, the lack of an opportunity to cross-examine Mr Doyle was a significant procedural irregularity and, in my view, amounted to a denial of procedural fairness. 24 Ms Watts also complained that she was called upon first to address the board, even though she represented the respondent to the application, and that she did not have the opportunity to reply to matters raised in Mr Doyle's address. I place less significance on this course of events. It appears from the transcript of the proceedings that Ms Watts did not seek permission to address in reply. The order of addresses was a matter for the board, subject to the dictates of fairness. If she had sought the opportunity to reply, she should and, I trust, would have been granted it. 25 None of this is to deny that proceedings before the land board should be conducted without undue formality or technicality. Nevertheless, procedural fairness should be accorded and statutory requirements governing the board's decision should be observed. 26 Two further grounds challenge the board's finding that a colorbond fence would be out of character for the area. It is said that no reasons were given for that finding and that the board disregarded unchallenged evidence that the area was zoned residential. However, on a fair reading of its reasons, it appears that the board concluded that, whatever the local council's zoning might have been, the area was properly characterised as "semi-rural, residential" on the basis of information provided by Mr Doyle and its own observation at the scene. This, in turn, was germane to its finding that a colorbond fence was out of character. Mr Brown's evidence was that, while there were some colorbond fences in the area, some properties were "hedge tree lined" and predominantly the fencing was post and rail. It cannot be said that there was no evidence upon which the board could have founded its conclusion. These grounds of appeal really amount to a criticism of that finding, but do not raise a question of law. 27 There are two remaining grounds of appeal relating to the practicability of the order for construction of a retaining edge. As I have found that that order is invalid, those grounds need not be considered. 28 Accordingly, the appeal must be allowed. Section 19(2) of the Act provides for an appeal to this Court, but the Act is silent about the consequential orders this Court may make if an appeal is allowed. Normally, I would think, the matter would be remitted to the land board to be determined according to law. However, Ms Watts argued that I should deal with the merits of the case so as to minimise further delay and cost. She submitted that the evidence before me is sufficient to enable me to do so.

29 I invited further written submissions from the parties on whether I could deal with the merits of the case, rather than remitting it to the land board. Ms Watts provided written submissions directed to that question of law. Mr Doyle, of course, was not able to do so, but he did provide a brief written outline of his position on the merits. 30 Ms Watts' submissions centred upon the undoubted proposition that the Supreme Court is a superior court of record of general jurisdiction. However, in the present case I am exercising an appellate jurisdiction conferred by statute. Section 75A of the Supreme Court Act 1970 deals generally with appeals to this Court, from whatever source, and subs (10) empowers the court to "make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires." There is authority that it is inappropriate to exercise that power where the appeal is limited to error of law and where the court would be required to make its own findings of fact: Loudoun-Shand & Anor v Jadasi Investments Pty Ltd [2007] NSWCA 316, per Basten JA at [50] - [52]. The more must that be so when, as here, there has been a denial of procedural fairness in the tribunal appealed from. This is not a case in which it could be said that only one conclusion is reasonably open on the evidence. 31 In any event, it would not be desirable for me to determine the merits of the matter. It seems to me that decisions of this kind benefit from experience and knowledge of the local area. At the conclusion of his judgment in Alwiah v Watts (supra), Malpass AsJ made some general observations about dividing fence disputes. In particular, his Honour said at [28]: "The Act confers jurisdiction on both a Local Court or local land board. The latter seems to be the forum usually chosen by applicants for relief under the Act. It has the experience and more informal processes for dealing with such applications. As I understand the position, it is common for the board to have a view." 32 Accordingly, regrettable as it is, the matter must be remitted to the local land board for determination according to law. The question arises whether it is possible and, if so, desirable for the land board to be differently constituted for that purpose. I request the parties to state their position on that matter. I would be happy to reconvene the Court and hear them in person, but I appreciate that Mr Doyle and Ms Watts would have to travel a considerable distance to Sydney to do so. I would be content if they were to communicate their position to me in writing but, if they would prefer to present oral argument, they should phone my associate to arrange an appropriate date. I will not pronounce formal orders until I have heard from them on this aspect. 33 Mr and Mrs Doyle must pay the costs of this appeal, but I shall grant to each of them a certificate under s 6 of the Suitors' Fund Act 1951. The land board had ordered the parties to pay their own costs. Ms Watts also sought an order that the Doyles pay the costs of the proceedings before the board, but I would not make that order. Presumably, it would be open to the land board on redetermination of the case to reconsider the costs of the original hearing.

21 December 2010 34 Since I gave reasons for my decision in this matter, the Doyles engaged a solicitor and this morning I have had the benefit of submissions by Mr Carney of counsel, instructed by that solicitor. Those submissions were directed only to the appropriate order under the Suitors' Fund Act. 35 I had invited the parties to provide submissions as to whether I should direct that the matter be remitted to a land board differently constituted for re-determination. I received a written submission from Ms Watts for the plaintiff to the effect that the course is not only desirable, but is also feasible. It seems that it is possible in the relevant area to convene a land board differently constituted from that which decided the matter the subject of the appeal and I propose to make that order. 36 As to the grant of relief under the Suitors' Fund Act, it does seem from s 6(1) of the Suitors' Fund Act that I have the power to issue to each of the Doyles a certificate under the Act. If that is so, that would entitle each of them to a payment of up to $10,000 from the fund. 37 I have been made aware informally that the costs they may have to meet will be significantly in excess of $10,000 and it appears to me to be just that I should make that order. 38 Should there be perceived to be any problem, I note that s 6C of the Suitors' Fund Act grants a general discretion to the Director General of the Attorney General's Department to make a payment from the fund in circumstances where such a payment would not otherwise be warranted by the Act. The Director General has a power to do so if he is satisfied that to make that payment "would be within the spirit and intent" of the relevant sections of the Act. 39 Accordingly, the formal orders I make are these:

The matter is remitted to the local land board for determination according to law. For the purpose of that determination the land board must be differently constituted from that which made the decision the subject of the appeal.

The Doyles must pay the plaintiff's costs of the appeal, but I grant to each of them a certificate under s 6 of the Suitors' Fund Act 1951.

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