Boreland v Brewis

Background

1. The appellant is the successor in title to land that was owned by his sister and brother-in-law (Mr and Ms McCartney). Whilst they were the owners of the land, the appellant was involved with the business of his sister and brother-in-law and lived on the rural property. The respondents referred to it as a "grazing business" of which the appellant was the "manager." The appellant in his documents referred to it as a "hobby farm" and denied being a farm manager. However, at the hearing on 23 June 2023, the appellant conceded that his land was approximately the same size as the respondents' land; and both the appellant and the respondents operated a "grazing enterprise".
2. In 2020, after legal proceedings had been commenced, Mr and Ms McCartney entered into a Deed of Release (Deed) with the respondents. The parties to the Deed were each legally represented.
3. The Deed arose in circumstances where the parties held a mediation arising from Local Court proceedings. The appellant attended the mediation with the Solicitor for Mr and Ms McCartney. Mr and Ms McCartney were not present at the mediation.
4. The appellant was not a party to the Local Court proceedings; nor a party to the Deed.
5. Relevantly, the terms of the Deed were that the parties to the Deed would engage a licensed fencer to supply and install a "rural type fence including black steel posts and stays; heavy import star post; 8-90 hinge joint and barb wire" on the common boundary between the properties, and each pay for 50% of the work. If Mr and Ms McCartney sought to "upgrade the fence…to exclusion standards at a later date" they would do so "at their own cost".
6. Pursuant to a quote obtained from the licensed fencer who the parties had agreed would install the fence, the monetary contribution of the respondents and Mr and Ms McCartney was $64,625. The parties to the Deed were to pay the fencer their respective contribution when separately invoiced by the fencer.
7. The type of fence identified in the Deed was also referred to as a "standard fence" or "rural fence", which is different from an "exclusion fence" that is a more expensive type of fence designed to prevent animals (in particular, feral animals and native animals) from getting through the fence. There had previously been a dispute between Mr and Ms McCartney and the respondents as to whether a "standard fence" or an "exclusion fence" should be constructed.
8. In April 2021, the respondents paid $64,625 into the trust account of its Solicitors for the purpose of contributing to the construction of the fence.
9. In 2021, there was a further dispute between Mr and Ms McCartney and the respondents about construction of the fence. Extensive correspondence passed between the Solicitors acting for Mr and Ms McCartney and the respondents. In essence, the position of the respondents was that Mr and Ms McCartney were attempting to construct an exclusion fence, and their agreement was only to contribute to the construction of a standard rural fence, with a standard rural fence to be constructed. There was also a separate dispute about alleged cattle theft and allegations of "defamation".
10. In any event, no fence was constructed and no party to the Deed obtained any court orders to enforce it. There was, according to the evidence given by the appellant at the hearing before the Tribunal below, "temporary" fencing installed at parts of the fencing line; and Mr and Ms McCartney had purchased fencing materials.
11. On 25 August 2022, the appellant became the registered owner of the land formerly owned by Mr and Ms McCartney. According to the appellant, this occurred in the context that Mr McCartney had recently passed away.
12. On 30 September 2022, the appellant served a fencing notice under s 11 of the DF Act on the respondents. The notice sought construction of a "standard rural fence to be upgraded to Clipex Tuff Knott at John Boreland's expense". The fence was to be 10km long and 1.65m in height. The cost of the fence was $385,000. Attached to the fencing notice was a quotation from Wilson Hirst Building t/as One Stop Homes. The sharing of cost was that the appellant would "pay for the fencing work and will be paid half the estimated cost upfront (by the respondents) on completion".

Procedural history

1. On 6 December 2022, Mr Boreland (the applicant below and now the appellant) brought an application under the DF Act to the Tribunal about the erection of a new fence. In his application, he asserted that he had recently "inherited" the land from his sister and "recently deceased" brother in law; the existing fence was over 100 years old and in a dilapidated condition; his family had lost "over 30 head of pure bread Angus cattle and progeny" due to the insufficient fence; his family had been trying to resolve the fence dispute "for years"; the respondents had refused to release their monetary contribution to the construction of the fence; and the appellant had "stopped farming" until the fence dispute was resolved. The application stated that the cost of fencing materials had increased. The application sought the respondents pay "$192,000 excluding removal of old fence, clearing fence line, remedial work of 8 gully crossings, stump and rock removal (if any) which is an additional charge of $99 per hour incl. GST".
2. The matter was listed for a conciliation and group list interlocutory hearing at the Tribunal on 20 December 2022. The Tribunal set the matter down for hearing, and made procedural directions that included the filing and serving of Points of Claim; Points of Defence; and documentary evidence relied upon. The respondents were legally represented at the directions hearing by Ms White Solicitor, but no order was made granting the respondents leave to be legally represented in the proceedings. In regard to that issue, it was directed that any application for legal representation "must be made in writing" and be filed and served by 13 January 2023. The Tribunal noted that an "issue" was the Deed of Release previously entered into.
3. We earlier noted that the appellant was not legally represented in the Tribunal proceedings. The respondents were legally represented in those proceedings with Ms Park, Solicitor, appearing at the Tribunal hearings held over two days, on 23 June 2023 and 27 September 2023.
4. Parties to the proceedings in the Tribunal below were not entitled to be represented by any person, including a legal practitioner, without a grant of leave: NCAT Act, s 45(1); r 32 of the NCAT Rules. It would appear that leave was not sought (or granted) for legal representation notwithstanding the procedural directions of the Tribunal dated 20 December 2022. No grant of leave in the Tribunal proceedings below was brought to our attention, nor referred to in the Tribunal decision that is the subject of the appeal.

The Tribunal hearing - Day 1

1. The matter was listed for hearing at the Tribunal on 23 June 2023 by audio-visual link. The appellant has provided a complete sound recording of both days of the hearing; and the respondents have provided a limited written extract of transcript that they rely upon in the appeal.
2. The documents the appellant relied upon were filed on 3 February 2023. The documents the respondents sought to rely upon (including Points of Defence and statement of Mr Brewis dated 20 June 2023) were only filed on 22 June 2023, the day prior to the hearing on 23 June 2023. Those documents relevantly included the Points of Defence; the statement of Mr Brewis dated 20 June 2023; and a "bundle of documents" separate to the statement of Mr Brewis that contained the Deed of Release and extensive correspondence between the Solicitors who acted for Mr and Ms McCartney and the respondents.
3. The appellant stated that the respondents' documents had been emailed to him on 21 June 2023, but he had not been served a hard copy and stated he was "disadvantaged". The respondents' Solicitor stated the documents had been emailed to the appellant on 20 June 2023. The appellant stated he had emailed the respondents' Solicitor on 20 March 2023 complaining that the respondents had not complied with procedural directions regarding the filing and serving of documentary evidence.
4. The Points of Defence was an extensive document that relevantly included an assertion that the appellant was sufficiently involved in the Deed of Release that he should be bound by its terms, and his proceedings should be dismissed by way of Anshun estoppel (i.e. the principles set out in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 (Anshun)) or otherwise as an abuse of process.
5. The appellant opposed the respondents being able to rely on the late documents. The respondents' Solicitor's explanation was that, due to changes within the firm, there was some confusion and she had only recently taken carriage of the matter.
6. In the early stages of the Tribunal's hearing, there was legal argument as to whether the appellant was bound by the Deed of Release. The respondents' Solicitor asserted that the appellant was bound by the terms of the Deed, as he attended the mediation and instructed the McCartneys' Solicitor. The appellant submitted that he was not a party to the Deed and could not enforce the orders under the Deed.
7. The Tribunal decided to allow the tender of the respondents' late documentary evidence and for the respondents to rely upon the issues raised in the Points of Defence. The respondents' Solicitor raised that perhaps the hearing should be adjourned so that the appellant had a greater opportunity to consider the respondents' documents. The appellant asserted the hearing should proceed without the Tribunal considering the respondents' documents, due to the failure of the respondents to comply with procedural directions and the procedural history of the matter.
8. The Tribunal stated, during the course of this argument, that its preliminary view was that the proceedings were a "fresh application" and that the Deed did not prevent the appellant from bringing proceedings under the DF Act. The respondents maintained the position that the proceedings were "an abuse of process". An oral submission was made that the appellant was, before purchasing the property, residing there and managing the business. The appellant repeated that he could not enforce the Deed as he was not a party to it; he was the new owner; and that he was entitled to bring proceedings under the DF Act.
9. After a brief adjournment, the Tribunal below stated it would adjourn the matter for approximately one hour for the appellant to look at the respondents' documents and identify what, if anything, caused prejudice to him before considering whether the hearing should be adjourned. The Tribunal stated that it did not want to "waste" the hearing date if possible. It was raised by the Senior Member that Ms White, Solicitor, may need to give evidence as to why the respondents' documents were not filed and served in accordance with Tribunal's directions and whether the respondents should be "prejudiced" by the conduct of its lawyers. The Senior Member stated that it was his "inclination" the hearing continue.
10. After approximately one hour, the Senior Member returned to the bench. The Senior Member enquired whether Ms White Solicitor was available to give evidence. Ms Park stated she was not, but was obtaining instructions for Ms White to prepare an affidavit explaining why the respondents' documents were not filed and served in accordance with Tribunal directions.
11. The Senior Member then stated that he would admit the respondents' documents because he accepted that the late service was the fault of the respondents' Solicitors rather than the respondents, but stated the appellant would be given the opportunity to file and serve evidence in reply "at the conclusion of today's hearing".
12. The Senior Member then stated he would hear the parties' evidence. The appellant took an oath. The appellant's documents were admitted into evidence. No witness statement had been filed and served by the appellant. The Senior Member stated that he would do his best to work out what the appellant asserted had happened from its documents. The Senior Member then took the appellant through matters relevantly including the service of the fencing notice and the quote attached. The appellant stated he had obtained two further quotes which had been sent to the respondents' Solicitor, but they were not in the documents he had filed and served. The appellant then explained what was meant by an "exclusion fence" and there was a different boundary between the appellant's property and a national park that had an "exclusion fence".
13. The appellant stated the order he sought was that an exclusion fence be built, but the respondents contribute half the cost of a standard fence (based on the quote attached to the fencing notice, being $192,000 excluding various expenses that would not be determined until the fencing line was cleared), and he would pay the remainder of the cost to upgrade. When the Senior Member raised that the appellant's fencing quote left open ended the cost of clearing the fencing line, the appellant proposed each party clear its land so that the fence could be constructed.
14. The hearing proceeded with the Senior Member asking the appellant a number of questions to ascertain the condition of the existing fence; the topography of the land; and what cattle the appellant ran on his land. The next part of the hearing involved the appellant describing the fence that he sought to be installed.
15. The appellant was then cross examined by the respondents' Solicitor. One of the issues cross examined about was the appellant's role in relation to the Deed. The appellant asserted that he attended the mediation because his brother-in-law had "terminal cancer" and was "helping" his sister and brother-in-law to manage their farm because his brother-in-law was ill. The appellant lived in the property from 2011, asserting he first moved there to assist his other sister who had cancer. The appellant stated that his involvement in the mediation was only to "carry out the wishes" of the McCartneys. The appellant also stated that, after the Deed was entered into, he instructed a fencing contractor to construct an exclusion fence (which ultimately was not constructed) because that is what his brother-in-law wanted built and his brother-in-law and sister intended to bear the additional cost of constructing an exclusion fence.
16. After the conclusion of cross examination of the appellant, Mr Brewis was called to give evidence. In response to a question from the Senior Member, Mr Brewis stated that he did not have any issue contributing half the cost of a standard fence with the appellant to bear the additional cost of an exclusion fence, but his main issue was the cost in the context of the previous agreement between the respondents and the McCartneys. He also believed the appellant's quote was excessive.
17. While Mr Brewis was giving evidence, the Senior Member raised the possibility that the Tribunal might order the construction of an exclusion fence, but give each party the opportunity to obtain a further quote about the cost of a standard rural fence. The Senior Member stated that this was a "preliminary view". The Senior Member then made comments about the benefit of parties co-operating in respect of fences, particularly in rural areas.
18. The respondents then cross examined Mr Brewis. However, much of the questioning was not formal questioning, but a general discussion about whether or not an exclusion fence would be of benefit to both parties and what was a "standard rural fence" in terms of height.
19. The Senior Member then stated that there appeared to be "no contention" the current fence was inadequate. He stated that he would give the parties a further opportunity to "put on evidence" and "make submissions".
20. There were then lengthy discussions, on record, about the parties attempting to resolve the fencing dispute. The Senior Member participated in those discussions. All of those discussions were focussed upon the parties agreeing to the type of fence to be constructed; how the land was to be cleared to construct the new fence; and what the contribution of the respondents would be. The discussions were extensive. During those discussions, the Senior Member commented that the parties appeared close to reaching an agreement regarding construction of a new fence and contribution. The Senior Member stated that, if the parties could not agree, he would make a decision on contribution that was likely based on the cost of a standard rural fence, with the appellant responsible for the cost of upgrading to an exclusion fence.
21. The Senior Member then made directions and notations which were issued to the parties. Each party was directed to file and serve quotes in respect of (a) materials; and (b) installation of a "standard rural fence". The dimensions of a "standard rural fence" were identified in the directions. The respondents were directed to serve in hard copy a copy of the documents they had emailed to the appellant on or about 20 June 2023. The appellant was to file and serve any documents and submissions he sought to rely upon in reply to the respondents' documents and submissions. The respondents was also directed to file and serve any reply submissions.
22. At the conclusion of the first day of the hearing, the Senior Member, in response to a query of the respondents' Solicitor, identified that he wanted submissions about the effect of the Deed of Release.

The Tribunal hearing - Day 2

1. The second day of the hearing was 27 September 2023. Again, the hearing was conducted by audio-visual link. The parties had obtained quotes, and filed and served submissions. The respondents' submissions were dated 3 August 2023, and included repetition of their argument that the appellant was Anshun estopped, or that the proceedings should be dismissed as an abuse of process, by reason of the Deed of Release, as well as contending that the appellant's submission as to how long clearing the fencing line and construction of the fence would take were inaccurate.
2. The Senior Member indicated, at the outset of the hearing on 27 September 2023, that the reason the matter had been listed was for the Tribunal to choose between the quotes obtained by the parties. There was a dispute at the commencement of the hearing whether the respondents had complied with the procedural directions by seeking to rely on three quotes rather than two. The appellant asserted the respondents should be ordered to pay their contribution "up front" to him so that he could pay the contractor to construct the fence. The Senior Member pointed out that may be impracticable, and it was open to the Tribunal to make a money order that the respondents pay the appellant a monetary amount for contribution to the cost, which the appellant could enforce if it was not paid, with the appellant to pay the fencing contractor.
3. The Senior Member then stated he would leave the bench to give the parties a further opportunity to resolve the matter. The Senior Member pointed out that it would be inappropriate for him to hear the negotiations, as he was part-heard in the proceedings, and if the parties did not settle, he would have to impose a decision on the parties. The Senior Member left the bench for approximately 15 minutes.
4. When he returned, he was informed that the parties could not settle. Both the appellant and Mr Brewis spoke directly to the Senior Member about their positions about the cost of the fence, with Mr Brewis asserting that the appellant's quotes were excessive. The respondents' Solicitor and the appellant then debated with each other which quotes were appropriate. The respondents identified to the Tribunal that two quotes obtained by the respondents were not filed in hard copy and were sent electronically to the Tribunal. The Senior Member left the bench to attempt to obtain a copy of the respondents' quotes. The appellant has filed his quotations in hard copy.
5. Upon his return to the bench, the Senior Member stated that he would not be able to obtain the respondents' quotes which had been filed electronically, and the only quote in hard copy from the respondents was a quote from TPH Rural and Fencing attached to the respondents' submissions of 3 August 2023. The Senior Member expressed his frustration that the respondents had not complied with procedural directions of the Tribunal and he would have to locate the two additional quotes of the respondents which had only been filed electronically.
6. The Senior Member allowed Mr Brewis to make an oral submission to the Tribunal. That submission involved the cost of a standard rural fence, and the quotes of the appellant were excessive. The appellant and Mr Brewis then argued about other disputes between them.
7. The Solicitor for the respondents raised the issue of costs. The Senior Member stated that any costs application would be determined separately.
8. The hearing then concluded, with the Senior Member stating that it was not appropriate to make directions regarding further written submissions. The decision was reserved.
9. Importantly, there was little or no argument or submission made by the respondents at the second day of the hearing that the proceedings should be dismissed on the basis of Anshun estoppel or as an abuse of process. The submissions and arguments of both parties, and the issues raised by the Senior Member, were focussed upon the disputed positions of the parties as to what was an appropriate cost of a "standard rural fence".

The decision under appeal

1. The Tribunal dismissed the application, making the following relevant factual and legal findings: 1. The appellant (who was the applicant below) "had the benefit" of the Local Court proceedings, having "participated at the mediation, instructing Solicitors on the McCartneys' behalf and liaising with contractors as well as the respondents". He attended the mediation in the Local Court and "instructed" the McCartneys' Solicitor (Tribunal's reasons for decision ("Reasons") at [59]). 2. After the Deed was entered into, the appellant instructed the selected fencer to "construct an exclusion fence contrary to the terms of the Deed of Release" (Reasons at [60]). 3. The appellant "ran his grazing enterprise with the McCartneys on the land" prior to ownership of the land being transferred to him; and "held an equitable interest in the land due to his contributions and the effective control that applicant has had in the running of the grazing enterprise involving the land" (Reasons at [62]; [70]). 4. The control and benefit the appellant held over the land prior to ownership being transferred to him by the McCartneys were sufficient for him to have a legal and equitable interest in the land (Reasons at [72]-[73]). 5. There was a "privity of interest" between the appellant and the McCartneys when the Deed was entered into (Reasons at [81]). 6. The appellant taking proceedings in the Tribunal under the DF Act when there was a previous Deed of Release that settled the fencing dispute was an abuse of process as it would bring the administration of justice into disrepute to allow further proceedings (UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45); and additionally the appellant was estopped from bringing Tribunal proceedings under Anshun principles because he had a "privity of interest" with the McCartneys when the Deed was entered into (Tomlinson v Ramsay Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28) (Reasons at [64]-[66]; [77]-[83]).

Scope and nature of internal appeals

1. To succeed in an appeal, an appellant must demonstrate either an error by the Tribunal below on a question of law, which may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: NCAT Act, s 80(2).
2. An appellant to an internal appeal brought under s 80(2)(b) of the NCAT Act must identify with precision a question of law said to be raised by the appeal: Ferella & Anor v Chief Commissioner of State Revenue [2014] NSWCA 378 at [6], [22]; Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13]. Whether a question is one of law must be approached as a matter of substance: Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 at 62, [94], [203]; Kudrynski v Orange City Council [2024] NSWCA 33 at [50].
3. We take the view that a question of law, for the purposes of s 80(2)(b) of the NCAT Act, must be a pure question of law (adopting what was said in Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 (Cobar) at [44], [49]; and Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [71], albeit in relation to different statutory provisions). In Cobar at [109] it was said by Bathurst CJ and Bell P (as the Chief Justice then was) with Garling, Johnson and Lonergan JJ agreeing: "Those questions of law should be, in our opinion, what are sometimes described as 'pure questions of law.' They should not draw the Court of Criminal Appeal into questions of fact. Moreover, they must be questions whose character as a question of law can be recognised on the face of the question, and not depend upon the answer given to the question. This does not include a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts."

Issues for determination in this appeal

1. In determining proceedings before it, the Tribunal is under a duty to afford procedural fairness to the parties. Procedural fairness, or the duty to act fairly, applies to courts and tribunals which are empowered to determine matters affecting the rights and interests of a person. Procedural fairness requires that the Tribunal give the parties a fair hearing, and that it be free from actual or apprehended bias. The term "procedural fairness" is synonymous with natural justice (the latter term is used in s 38(2) of the NCAT Act).
2. It is well established that the Tribunal must conduct a hearing that gives procedural fairness to both parties, even taking into account the less formal nature of Tribunal proceedings (s 38(4) and subs (5) of the NCAT Act). What is necessary and appropriate to ensure a fair hearing depends on the particular facts and statutory context, rules of procedural fairness being flexible and adaptable so as to be appropriate in a given case so as to avoid practical injustice (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [26] and [29]; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [19]-[20]; Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37]-[38]).
3. The appellant raised a denial of procedural fairness as a ground of appeal, noting that, in respect of a self-represented non-legally trained party, the Appeal Panel must consider the substance of what is raised as the grounds of appeal (see e.g. Cominos v Di Rico [2016] NSWCATAP 5 at [13]). Whether there has been a breach of procedural fairness raises a question of law: see e.g. Kudrynski at [52]; YHY v YHZ [2024] NSWCATAP 117.
4. Where there has been a breach of the requirement to afford the appellant procedural fairness, the question arises whether that error was material to the Tribunal's decision. A breach of procedural fairness will constitute jurisdictional error, if the error is material to the Tribunal's decision: Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 (Nathanson) at [1], [33] (Kiefel CJ, Keane and Gleeson JJ). Materiality is established if the procedural unfairness deprived the appellant of a realistic possibility of a different outcome on the application lodged in the Consumer and Commercial Division.
5. If the appellant succeeds on his ground of appeal which asserts a denial of procedural fairness, it is unnecessary to consider any other issues raised in the grounds of appeal as to whether they can be formulated in substance to identify any other error on a question of law (or if not, whether leave to appeal should be granted under s 80(2)(b) and bearing in mind the limitations set out in cl 12 of Sch 4 to the NCAT Act with respect to internal appeals from decisions made by the Consumer and Commercial Division).
6. As recently noted in the Appeal Panel decision in YHY v YHZ [2024] NSWCATAP 117 at [54], authority dictates that we hear and determine a procedural unfairness challenge prior to any other challenges and that "whenever a matter is remitted for a retrial, it is preferable that the appellate court restrict its assessment of the evidence to matters necessary to the finding of error": Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 per Basten JA at [11], [13].

Consideration

1. Procedural fairness requires that parties have an adequate opportunity to put their case and test the case against them. By s 38(5)(c) of the NCAT Act, the Tribunal is required to take "reasonably practicable measures" "to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings".
2. As Justice Basten stated in Italiano v Carbone & Ors [2005] NSWCA 177 at [88]: "An opportunity foregone, but reasonably available, does not demonstrate breach of procedural fairness. To demonstrate procedural fairness it is usually necessary to show that a claimant "lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment," as explained by Gleeson CJ in Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [36]. As the Chief Justice continued at [37]: '"A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations." at [37].'"
3. If it is established that there was a denial of procedural fairness, it must then be considered whether there exists a realistic possibility that the outcome of the decision could have been different had the error not been made (LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [11]-[16] referring to Nathanson and Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54). Finding that a properly conducted application would have inevitably produced the same result is not done lightly: Stevanovski v CLK Plumbing Pty Ltd [2017] NSWCATAP 180 at [30]-[31].
4. Here, we consider that Tribunal failed to afford procedural fairness by not giving the appellant a reasonable opportunity to be heard on the factual and legal issues as to whether the appellant was estopped from bringing the Tribunal proceedings under the DF Act; and whether the bringing of the proceedings were an abuse of process.
5. We accept that the respondents raised the issues of Anshun estoppel and abuse of process in their Points of Defence (which were served on about 20 June 2023) and in its written submissions of 3 August 2023.
6. However, those issues were only briefly raised on the first day of the hearing. The appellant was cross examined on his involvement in the operation of the McCartneys' grazing business; the period he lived at the property; his purported 'instructions' to the McCartneys' Solicitors; and the engagement of a fencer after the Deed was entered into with the purpose of constructing an exclusion fence.
7. The first day of the hearing was dominated by whether or not the respondents should be held liable to contribute to the cost of a standard rural fence (with the appellant constructing an exclusion fence, and bearing the increased cost of upgrading a standard rural fence to an exclusion fence). The comments made by the Senior Member on day one of the hearing focussed upon what type of fence was to be constructed; where it was to be constructed; the cost of doing so; and how much the respondents should be held liable for a contribution.
8. Although the Senior Member made brief comments that the terms of the Deed were an "issue" that he wanted submissions upon, a reasonable self-represented litigant in the position of the appellant would understand that what the Tribunal was focussed upon was not whether his proceedings should be dismissed on the basis of estoppel or abuse of process; but what fence should be constructed; what the costs should be; and what amount the respondents should be ordered to contribute.
9. This was magnified by the Senior Member, for a considerable period of time during the first day of the hearing (and after the appellant had given evidence), moving the hearing into what, in substance, was an attempt to conciliate between the parties. The procedural directions issued by the Tribunal at the conclusion of the first day of the hearing were primarily directed towards the parties proving quotations with a view to the Tribunal determining the appropriate cost of the replacement fence when the hearing was concluded, and there was no specific reference in those directions to the appellant providing submissions on the issues of Anshun estoppel or abuse of process; nor that the Tribunal may determine that the proceedings should be dismissed on such grounds.
10. On the second day of the hearing, there was no fresh oral evidence given. Rather, leaving aside the Tribunal's encouragement of the parties to settle the dispute and time taken on various unhelpful arguments between the appellant and Mr Brewis about extraneous issues, the focus was again what fence should be constructed; what would the cost be; and how much the respondents should be liable to contribute.
11. The appellant made no oral submissions on the second day of the hearing as to why the proceedings were not an abuse of process or did not give rise to an Anshun estoppel. He was not invited to do so by the Senior Member. The appellant had raised arguments as to why he was not a party to the Deed and why he was not bound by it at the commencement of the first day of the hearing. However, by the end of the second day of the hearing, the comments made by the Senior Member and the manner the hearing was conducted clearly shifted the focus away from the issue of potential dismissal of the proceedings; and towards the Tribunal ordering a replacement fence be constructed and making orders regarding the respondents contributing to the cost of the fence irrespective of the terms of the Deed.
12. Further, the Tribunal did not make any procedural directions giving the parties the opportunity to file and serve further written submissions when the decision was reserved on 27 September 2023.
13. The failure of the Tribunal to give the appellant a reasonable opportunity to make submissions which addressed Anshun estoppel and abuse of process deprived him of the opportunity of raising a legal argument that there was no privity of interest between himself and the McCartneys giving rise to any Anshun estoppel or abuse of process (Champerslife Pty Ltd v Manojlovski & Anor (2010) 75 NSWLR 245; [2010] NSWCA 33 at [3]-[5]; [69]; [88]-[90]; Stokes v Toyne [2023] NSWCA 59 at [2]-[3]; [6]; [10]; [69]; [75]-[90]; [133]-[151]). This failure was clearly material to the decision, in circumstances where the appellant was not a party to the Deed; could not enforce the Deed; and only had rights under the DF Act when he became the legal owner of the land.
14. We are satisfied that there was a denial of procedural fairness to the appellant by reason of not having a reasonable opportunity to make submissions as to why the proceedings should not be dismissed as an abuse of process (or that he was estopped from bringing the proceedings) and that the Tribunal's error was material because there is a real possibility that, if he had been accorded that opportunity, the outcome may have been different. We allow the appeal on this basis.

Orders

1. We make the following orders: 1. The appeal is allowed. 2. The decision of the Tribunal made on 7 December 2023 is quashed. 3. The application made on 6 December 2022 is to be reconsidered by the Tribunal, differently constituted. 4. What further or other evidence can be relied upon by the parties is to be determined by the Tribunal at an interlocutory directions hearing.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 July 2024