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[2019] ACTCA 1
Court of Appeal (ACT)
2019-02-14
Burns, Elkaim and Loukas-Karlsson JJ
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Campbell v Blackshaw
Citation: [2019] ACTCA 1
Hearing Date: 17 November 2018
Decision Date: 14 February 2019
Before: Burns, Elkaim and Loukas-Karlsson JJ
Decision: Each appeal is dismissed.
Catchwords: CIVIL LAW – APPEAL AND NEW TRIAL – Practice and procedure – leave to appeal – appeal against decision refusing to grant leave to appeal decision of ACT Civil and Administrative Tribunal – dispute between neighbours – nuisance caused by trees – application for leave to appeal out of time – failure to properly explain delay – limited merit in grounds of appeal – extension of time to appeal not granted – common boundary dispute – consideration of proposed grounds of appeal – leave to appeal not granted
Legislation Cited: ACT Civil and Administrative Tribunal Act 2008 (ACT) ss 15, 18, 22, 82, 86 Common Boundaries Act 1981 (ACT) ss 4, 5, 10, 11 Court Procedures Rules 2006 (ACT) s 5072 Magistrates Court Act 1930 (ACT) ss 257, 258, 260
Cases Cited: Campbell v Blackshaw [2018] ACTSC 39 Capital Property Projects (ACT) Pty Ltd v Australian Capital Territory Planning & Land Authority [2008] ACTCA 9; 2 ACTLR 44 Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTCA 56 Department of Premier and Cabinet v Hulls [1999] VSCA 117; 3 VR 331 House v The King [1936] HCA 40; 55 CLR 499 Myers v Medical Practitioners’ Board of Victoria [2007] VSCA 163 Practitioner D3 v ACT Civil and Administrative Tribunal [2017] ACTCA 62 R v Meyboom [2012] ACTCA 2 Wiser v Havelock Housing Association Inc [2014] ACTSC 138 Young and Hammond (Civil Dispute) [2012] ACAT 30
Parties: Maryanne Campbell (Appellant) Adam Blackshaw (First Respondent) Robyn Evans (Second Respondent)
Representation: Counsel T Crispin (Appellant) A Twigg (Respondents)
Solicitors Peter B Christensen, Solicitor (Appellant) Snedden Hall & Gallop (Respondents)
File Number(s): ACTCA 17 of 2018; 18 of 2018
Decision under appeal: Court/Tribunal: ACT Supreme Court Before: Mossop J Date of Decision: 2 March 2018 Case Title: Campbell v Blackshaw Citation: [2018] ACTSC 39
THE COURT
Introduction
(a) The application for leave to appeal dated 4 December 2017 is dismissed. (b) The applicant is to pay the respondents’ costs of the proceedings. (c) Any application for a different costs order, including any fixed sum costs order, must be filed and served within 14 days.
Nuisance
The first appeal relates to nine trees running down the fence line between the properties occupied by the parties.
The grounds of appeal relating to the leave to appeal decision are as follows:
The learned Justice fell into error by failing to give adequate weight to the public interest in clarifying whether section 260 of the Magistrates Court Act confers jurisdiction to issue injunctive relief on both the ACT Magistrates Court and ACAT. 2. The learned Justice fell into error by finding that the Appellant had not established an evidential basis as to the ownership of the water pipes when the burden to do so falls on the respondent.
The appellant seeks the following orders:
That the appeal be allowed. 2. That the decision of his Honour Justice Mossop dated 2 March 2017 be overturned. 3. That the original application be dismissed. 4. Costs. Appellant’s Submissions
The appellant outlined that on 16 September 2016, The ACT Civil and Appeals Tribunal (ACAT) made the following orders:
Within 28 days, the respondent remove all of the nine (9) evergreen trees growing on the respondent’s property located on or adjacent to the boundary between the respondent’s property and the applicant’s property as depicted on a survey sketch dated 13 May 2014 prepared by Peter Mayberry, registered surveyor. 2. The respondent must give the applicants three (3) days’ advice by email of the intended commencement of the work referred to in order 1 3. The applicants and the respondent must ensure that any contractors, their servants and agents who are engaged by the respondent to remove the trees referred to in order 1 have access to their respective properties at any time between Monday and Friday inclusive between the hours of 8am and 5pm for the purpose of removing trees. 4. All amounts payable for removal of the trees in accordance with order 1 are to be paid by the respondent. 5. In the event that the respondent does not remove the trees within 28 days in accordance with order 1, the applicants may engage contractors to remove the trees at a cost not exceeding $10,000. 6. If order 5 applies and the applicants engage contractors to remove the trees, the applicants and the respondent must ensure that those contractors, their servants and agents have access to their respective properties at any time between Monday and Friday inclusive between the hours of 8am and 5pm for the purpose of removing trees. 7. If order 5 applies and contractors remove the trees under contract with the applicants, the respondent must pay the applicants the amount stated on the contractors’ tax invoice or invoices as payable for the work done within 28 days of the applicants giving the respondent a copy of the invoice or invoices.
The appellant appealed from the order to the ACAT Appeal Tribunal. On 30 August 2017 the ACAT Appeal Tribunal dismissed the appeal. The appellant sought leave to appeal and leave to appeal out of time in the ACT Supreme Court from the decision of the ACAT Appeal Tribunal. On 2 March 2018, Mossop J refused leave to appeal out of time.
The ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act) provides that a party to an application for an appeal may appeal to the Supreme Court on a question of fact or law, but only with the leave of the Supreme Court: s 86 of the ACAT Act.
The appellant relied on Capital Property Projects (ACT) Pty Ltd v Australian Capital Territory Planning & Land Authority [2008] ACTCA 9; 2 ACTLR 44 at [51]-[54] as authority for the submission that an applicant for a grant of leave needs to demonstrate that there is an arguable case to be put before the court, and further, that the Court need not decide on the correctness of the primary decision, but it is necessary to show that there is a real or significant argument to be put that error exists.
The appellant referred to r 5072 of the Court Procedures Rules 2006 (ACT) which requires applications for leave to appeal to be filed within 28 days of the order to be appealed from. Accordingly, the appellant was due to have filed this application on or before 27 September 2017. The application was filed 40 days out of time. As such, the appellant was additionally obliged to seek leave to appeal out of time.
In relation to the issue of being out of time, the appellant referred to the primary judgment at [58]. His Honour there stated: While there is some merit in one of the proposed grounds of appeal, that must be weighed against the lack of any proper explanation for the delay in bringing the appeal. Regard must also be had to the nature of the underlying dispute and the limited utility of an appeal having regard to the existing rights of the respondents and the likely construction of a new boundary fence. On balance, because of the importance of time limits provided upon applications for leave to appeal in order to bring finality to disputes and the absence of any proper explanation for the delay in seeking leave to appeal, I do not consider that it is appropriate to extend the time in which to make the application for leave to appeal.
The appellant submitted that the matters to be considered in determining whether to grant an extension of time to commence proceedings are outlined in Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTCA 56 (Concerned Citizens of Canberra Inc) at [21] by Refshauge J as follows:
Time limits are important and must, prima facie, be obeyed. 2. In order to justify a court acceding to an application to extend time, there must be some material on which the court can exercise its discretion. 3. Such an application should only be granted if, having regard to the important value of finality in litigation and the need for time limits to be respected, it is proper to do so. 4. There should be an explanation for the delay, as to which any action (other than to appeal) that has been taken by the applicant is relevant. 5. The court must consider any prejudice to the respondent in defending the proceeding, as caused by the delay, and any such prejudice will tell against the extension. 6. The mere absence of prejudice is not enough to justify the extension of time. 7. The merits of the appeal itself must be taken into account in deciding whether an extension of time should be granted. 8. The court, on considering an application for an extension of time within which to appeal, should not decide the appeal and, in an appropriate circumstance, an arguable case may be sufficient, though in the case of long delay it may be necessary to show that the applicant has a strong case. 9. Nevertheless, the application is to be determined by the court’s view of the demands of justice in accordance with a broad judicial discretion and not by the mere application of a verbal formula. 10. In particular, the court will look, above all else, to determine whether there has not been and will not be, if the application is refused, a miscarriage of justice which will always be an overriding consideration.
The appellant submitted that on the basis of the relative shortness of the delay, the medical evidence that the appellant was unwell during the relevant period, and the finding of some merit in the grounds of appeal, the primary judge erred in law by refusing to grant an extension of time.
The appellant, in arguing that the merits of the matter favoured a grant of leave, relied on the following three grounds from the Amended Draft Notice of Appeal that was before the primary judge. Those three grounds are as follows:
The Tribunal erred in law in finding it had jurisdiction to grant an injunction. 2. The Tribunal erred in law in finding a nuisance where the damage, if any, caused by the appellant is to the property of a third party, Icon Water. 3. The Tribunal erred in law in failing to allow the appellant the right to be heard on the current situation with the pipes, particularly in circumstances where there no incidents [sic] with roots invading the sewer lines for 18 months prior to the original hearing and a further 14 months had elapsed since then. Appellant’s Overall Submission on the Three Grounds
The appellant submitted that the Court could be satisfied that there is a reasonable argument to be determined on appeal. The appellant submitted that the questions raised, particularly in relation to the first ground, are of no small significance and provide an opportunity for the court to clarify the ACAT’s powers. The appellant submitted that the delay in the commencement of proceedings was modest and was adequately explained, and has resulted in no prejudice to the respondents. The appellant finally submitted that the matters referred to in Concerned Citizens of Canberra Inc had been satisfied.
Respondents’ Overall Submission on the Three Grounds
The respondents submitted that the appellant in the current proceedings simply sought to “reventilate” the matter heard and decided by the primary judge “in an effort to get a different decision from this court”. The respondents further submitted that this is evidenced by the structure of the appellant’s submissions, in that the appellant’s submissions “simply recite and reargue the appellant’s submissions to the primary judge and argue that his Honour made ‘errors of law’”.
The respondents submitted that the assertions of the appellant that the primary judge erred in law on the basis of the relative shortness of the delay, the medical evidence that the Appellant was unwell during the relevant period, and the finding of some merit in the grounds of appeal are not expanded upon nor related elsewhere in the appellant’s written submissions as an error in the exercise of discretion. The respondents further submitted that the appellant sought only to rely on the same assertions and arguments made previously to the primary judge.
Relevant Law
Section 86(3) of the ACAT Act, provides that appeals “may be brought only with the Supreme Court’s leave”. The primary judge had a broad discretion on this question: Department of Premier and Cabinet v Hulls [1999] VSCA 117; 3 VR 331 (Department of Premier and Cabinet v Hulls) at [8], adopted in Wiser v Havelock Housing Association Inc [2014] ACTSC 138 (Wiser) at [3]. Similarly, the primary judge had a broad discretion in relation to the application for leave to extend time: R v Meyboom [2012] ACTCA 2 per Refshauge J at [71] and Practitioner D3 v ACT Civil and Administrative Tribunal [2017] ACTCA 62 per Murrell CJ at [38]. For a challenge to a discretionary decision to succeed on appeal, the appellant must show an error of principle or demonstrate error as identified in House v The King [1936] HCA 40; 55 CLR 499 (House v The King).
It is not sufficient that this Court form the view that it would have exercised the relevant discretion differently. It is for the appellant to demonstrate that the primary judge:
(a) Erred as a matter of principle;
(b) Failed to have regard to a relevant consideration;
(c) Had regard to an irrelevant consideration;
(d) Made a material error of fact or law; or
(e) Otherwise arrived at a decision or outcome that was plainly unjust or unreasonable.
The separate proposed grounds of appeal are dealt with as follows. Proposed Ground One
The appellant submitted that the primary judge found that there was an arguable basis to find that absent a statutory power, injunctions are only available in equity, and the injunctive power did not extend to ACAT. However, the primary judge declined leave by finding that the matter had not been raised below, and further, even if ACAT only had ancillary injunctive power, the issue could have been resolved by the respondents seeking a formal claim for damages less than $25,000.
The appellant submitted that it is apparent that the issue of the orders being injunctions was raised in the appeal, hence the reference to quia timet injunctions.
The appellant submitted that s 22 of the ACAT Act provides that ACAT has the same jurisdiction and powers in relation to civil dispute applications as the Magistrates Court has under the Magistrates Court Act 1930 (ACT) (Magistrates Court Act). The ACT Magistrates Court as a statutory court has only that jurisdiction which is expressly conferred upon it. The appellant submitted that in accordance with s 257, the Magistrates Court is empowered to decide actions at law, and in accordance with s 258, the Magistrates Court may give effect to equitable defences or counterclaims.
The appellant also submitted that s 260 of the Magistrates Court Act provides that the Magistrates Court has the same jurisdiction as the Supreme Court. To hear and decide a civil action for nuisance, and that it may grant the same relief. The appellant continued that the ACAT has interpreted this provision as granting the Magistrates Court power to make injunctions. The appellant cited Young and Hammond (Civil Dispute) [2012] ACAT 30 as authority that ACAT has then further determined that section 22 of the ACT Civil and Administrative Tribunal Act (2008) confers this same power on ACAT.
The appellant submitted that this analysis is flawed, on the basis that s 18 of the ACAT Act provides that the Tribunal’s jurisdiction is limited to “civil dispute applications claiming amounts of not more than $25,000.00”, however, in the appellant’s submission, an application for injunctive relief does not claim an amount at all. The appellant noted that s 18(3) specifically excludes applications for a common boundaries determination and applications prescribed by regulations, however there is no exception for nuisance applications. Accordingly, the appellant submitted that ACAT does not have jurisdiction to grant injunctive orders.
In the alternative, the appellant submitted that any jurisdiction ACAT has to make injunctive orders would be equitable in nature, and require proper consideration of the “maxims of equity” prior to exercise. The appellant submitted that no such consideration was apparent in the relevant decision.
In relation to this ground, the appellant finally submitted that the primary judge erred firstly, in considering an appeal from ACAT where parties often appear unrepresented, and indeed where the appellant appeared unrepresented in 2014, by being prepared to refuse leave on the basis of arguments not having been raised below, and secondly, on the basis that if the hypothetical amendment was made to the appellant’s claim before ACAT, the proceedings before the ACAT would have been conducted on a different basis, and the grant of an order in the nature of an injunction would not have been inevitable. Consideration of Proposed Ground One
The respondents referred to the appellant’s submission that the primary judge “should have been less prepared to refuse leave on the basis of the arguments not being raised below” on the basis of the self-represented status of the appellant before ACAT in 2014. The respondents submit that this is “self-serving”, as the appellant was legally represented thereafter “quite regularly”, as opposed to the respondents who were not represented until the Supreme Court proceedings initiated by the appellant. The respondents further noted that the appellant’s submissions contain the unsupported assertion that the ACAT proceedings “would have been conducted on a different basis”. In this regard, we note that the appellant was represented before the Appeal Tribunal.
Importantly, the primary judge clearly explained his reasoning on this issue at [20]—[30] of Campbell v Blackshaw [2018] ACTSC 39 (the primary judgment):
The applicant submitted that there is no power to grant an injunction because the jurisdiction of the ACAT is limited to claims for damages where the amount claimed does not exceed $25,000. The applicant submitted that s 18 of the ACAT Act limited the jurisdiction to “civil dispute applications claiming amounts of not more than $25,000.” 21. The applicant also submitted that if an injunction was to be granted this would “require proper consideration of the maxims of equity”. 22. The respondent submitted that this matter was not raised before the Appeal Tribunal and that the applicant should not be allowed to raise it now. 23. Section 15 of the ACAT Act includes the definitions of the various types of application that may be made to the ACAT. The definitions of these applications are quite precise. For example, while the wording of the definitions of “contract application” and “damages application” make specific reference to recovery of damages, the definition of “nuisance application” refers to “an application for relief for nuisance”. 24. Section 18 of the ACAT Act limits the ACAT’s jurisdiction on civil dispute applications to “applications claiming amounts of not more than $25,000”. Common boundaries determinations are excluded from this limitation: s 18(3)(a). 25. Section 22 of the ACAT Act provides that the ACAT has the same jurisdiction and powers in relation to civil dispute applications as the ACT Magistrates Court has under the Magistrates Court Act 1930 (ACT). Section 260 of the Magistrates Court Act provides: 260 Nuisance (1) The Magistrates Court has the same jurisdiction as the Supreme Court to hear and decide a civil action for nuisance. (2) In a civil action for nuisance, the Magistrates Court may grant the same relief as the Supreme Court may grant in a similar action in that court. 26. As injunctions are the principal form of relief granted in actions for nuisance, this provision would permit the Magistrates Court to grant injunctions in an action for nuisance. 27. There is an arguable case that the terms of s 18 are such that, in the absence of regulations expressly removing the limitation upon the jurisdiction, the jurisdiction of the ACAT does not extend to the granting of injunctive relief. There are, however, arguments to the contrary arising from the terms of the definition of “nuisance application” and the relationship between ss 18 and 22. Depending upon the interpretation of s 22 adopted it may be that: (a) the ACAT had no power to make any order other than a monetary one; (b) the ACAT could make ancillary orders so long as the initial application claimed damages of less than $25,000; or (c) the limitation did not apply when non-monetary relief was sought in an application for relief from nuisance. 28. The issue is similar to that in Abbey v Mack [2010] ACTSC 140; 244 FLR 324, but that case is not determinative of the current issue. 29. I accept that the applicant’s contention is arguable. It is not a matter which was raised at either level below. Although it would be fatal to the proceedings if the first interpretation above was adopted, if the second interpretation above was adopted and the matter had been raised, it would have been open to the respondents to amend their application so as to make a formal claim for damages in an amount of less than $25,000 in order to enliven the jurisdiction of the ACAT. If that was the case, then that fact would tell against a grant of leave to appeal. It is not a case like Abbey v Mack where it was uncontroversial that the monetary limit, if it applied, was clearly exceeded: see Abbey v Mack at [2]. 30. So far as the applicant’s alternative argument was concerned, the submissions of the applicant gave no indication of what “maxims of equity” might be applicable or the respect in which the application of such maxims might have altered the outcome of the case. I therefore do not consider that this alternative ground provides a basis for a grant of leave to appeal.
The primary judge accepted that the appellant’s contention in relation to injunctive relief was arguable and noted that it was not raised at first instance or on appeal below. The primary judge referred to the two competing interpretations and also noted that if the second interpretation was adopted and the matter had been raised earlier it would have been open to the respondents to amend their application. We see no error in the primary judge’s approach. The appellant has not demonstrated error.
Proposed Ground Two
Consideration of Proposed Ground Two
With respect to Ground Two, the appellant has failed to establish any House v The King error which would require the Court to overturn any part of the primary judge’s findings and decision on this issue. The primary judge found at [31]—[35] as follows:
The applicant submitted that much of a nuisance complained of was damage to pipes said to be caused by roots of trees growing on the applicant’s property. The submission was that the pipes “are the property of Icon Water” which was not a party to the case. The applicant submitted that if damage had been caused because of damaged pipes, then the remedy was against Icon Water and any action against the applicant for damaging pipes would need to have been brought by Icon Water. As a consequence the respondents did not have standing to restrain the applicant. 32. The evidence read in support of the application for leave to appeal did not establish whether the pipes in question were the property of Icon Water or provide any authority in support of the proposition that the respondents were precluded from bringing an action in the circumstances. This was not an argument raised at either level within ACAT. 33. The respondents submitted that the ACAT also found actionable nuisances constituted by periodic flooding and by encroachment which have not been disputed. 34. There was some reference in the decision of the Tribunal to stormwater pipes and a “TAMS stormwater main”: see Tribunal decision at [33], [37], and to the involvement of ACTEW and private companies clearing stormwater lines: Tribunal decision at [36]. These references to the evidence before the Tribunal are insufficient to provide a factual basis for the submission made by the applicant. 35. Because the evidentiary basis for the submission was not established and because it was not raised below, it would not provide a suitable basis for a grant of leave to appeal.
This argument was not raised at first instance or on appeal at ACAT. The evidence in support of the application for leave to appeal before the primary judge did not establish whether the pipes were the property of Icon Water. Moreover, leaving aside that issue, no authority was provided in support of the proposition that the respondents were precluded from bringing an action for nuisance in the circumstances of this case.
The appellant has not established error. The primary judge was not in error in finding that because the evidentiary basis was not established and the matter was not raised below there was not a suitable basis for a grant of leave to appeal.
Proposed Ground Three
The appellant submitted that the primary judge found that Ground Three was not made out on the basis that the appellant did not seek to re-open the matter before ACAT to raise the issue. The appellant submitted that, given the view the tribunal took of its own processes, such an approach would not have succeeded.
The appellant further submitted that the primary judge’s finding that the requirements of “imminent risk of substantial or irreparable damage” for quia timet injunctions did not apply due to the cause of action in nuisance being “complete”, was incorrect.
Finally in relation to this ground, the appellant submitted that at the time of the original hearing, there was no evidence that the pipes at the heart of the claim had been subjected to an invasion by roots in the previous 18 months. By the time of the appeal tribunal hearing, the appellant submitted that there was no evidence that the pipes had been invaded by roots in the previous 32 months.
Consideration of Proposed Ground Three
The respondents addressed the appellant’s submission in relation to this ground, and submitted that the appellant’s submissions on this issue “do not capture the fullness, nuance and detail” of the reasoning of the primary judge.
The primary judge clearly considered the appellant’s submissions. The appeal submissions in this Court are in essentially the same form as they were put to the primary judge. The primary judge set out all the relevant matters and his reasons for decision at paragraphs [36]—[39] of the primary judgment:
The applicant submitted that s 82 of the ACAT Act gave the Appeal Tribunal sufficient flexibility so as to permit it to consider the situation of the parties at the time of the appeal, not just at the time of the original decision. 37. The applicant submitted that there was no evidence that the pipes at the heart of the claim had been subjected to an invasion by roots in the previous 18 months and, by the time of the appeal hearing, there was no evidence that the pipes had been invaded by roots in the previous 32 months. The applicant characterised the injunctions granted as quia timet injunctions and submitted that the granting of such injunctions was precluded because the impending damage was not substantial or almost irreparable: Robson v Leischke [2008] NSWLEC 152; 72 NSWLR 98 at [58], [200]. 38. The hearing before the Tribunal occurred on 4 August 2016. The decision was given on 16 September 2016. The hearing before the Appeal Tribunal was on 21 November 2016 and the decision given on 30 August 2017. There was therefore approximately 13 months between the hearing before the Tribunal and the decision of the Appeal Tribunal. 39. The reasons why this ground of appeal would not provide an appropriate basis for a grant of leave to appeal are as follow: (a) The fact that the evidence disclosed that there was no present proof of root invasion from the cypress trees was a matter which was the subject of a ground of appeal before the Appeal Tribunal and dealt with by the Appeal Tribunal at [52]-[54]. The submissions do not disclose why the applicant says that the approach of the Appeal Tribunal set out there was incorrect. (b) While the Appeal Tribunal took nine months to deliver its decision, the applicant did not seek to reopen its appeal during that period to put on further evidence about the current state of the drains. In the absences of such an application, the Appeal Tribunal did not deny the applicant procedural fairness by deciding the appeal on the basis of the material before it. (c) The issue as to whether or not it was open to grant a quia timet injunction was raised in submissions before the Appeal Tribunal but not in any ground of appeal. The Appeal Tribunal addressed the issue at [62] in its reasons. It recorded that the submission misunderstood the basis on which the Tribunal at first instance made its orders, and that it acted because the cause of action was already complete as the nuisance had occurred by way of roots and branches and continued by way of the branches. As a consequence the stricter requirements of “imminent risk of substantial or irreparable damage” applicable to a quia timet injunction was not applicable. The submissions of the applicant failed to address this aspect of the Appeal Tribunal’s reasons or demonstrate an arguable basis for contending that those reasons involved any error. (d) Finally, the orders of the Tribunal at first instance were also based on the existence of a nuisance by reason of the encroachment of the trees upon the property of the respondents. This was a separate and alternative ground for the granting of relief. Hence, even if the ground of appeal was a good one, it would not compel the discharge or variation of the orders that the Appeal Tribunal made.
We consider that the appellant has failed to establish any error which would require this Court to overturn the primary judge’s findings and decision on this issue. Fatal to the success of this ground is the fact that there was a separate ground for the granting of relief. Therefore, even if this ground was made out it would not lead to orders different to the orders made by the appeal tribunal.
Fence
The second appeal relates to issues surrounding a boundary fence between the appellant and respondents’ properties.
The ground of the appeal from the decision of Mossop J refusing leave to appeal out of time, is as follows:
The learned Justice fell into error by failing to give adequate weight to the question of whether ACAT has power to determine the correct boundary between properties in considering a fencing repair matter.
The appellant seeks the following orders:
That the appeal be allowed. 2. That the decision of his Honour Justice Mossop dated 2 March 2017 be overturned. 3. That the original application be dismissed. 4. Costs.
Appellant’s submissions
The appellant submitted that s 82(1) of the ACAT Act provides that a party to an application for an appeal may appeal to the Supreme Court on a question of fact or law. The appellant submitted that section 82(3) provides that an appeal under s 82(1) requires leave of the Supreme Court.
The appellant relied on Capital Property Projects (ACT) Pty Ltd v Australian Capital Territory Planning & Land Authority [2008] ACTCA 9; 2 ACTLR 44 as authority for the proposition that an applicant for a grant of leave needs to demonstrate that there is an arguable case to be put before the court, and further, that the Court need not decide on the correctness of the primary decision, but it is necessary to show that there is a real or significant argument to be put that error exists.
The appellant further submitted that it is not necessary for an applicant to establish that there is a question of general or public importance, however doing so will weigh in favour of leave. The appellant referred to Myers v Medical Practitioners’ Board of Victoria [2007] VSCA 163; 18 VR 48 at [28] and Wiser v Havelock Housing Association Inc [2014] ACTSC 138 (Wiser) as authority for the proposition that once a real or significant argument as to the correctness of the relevant decision has been demonstrated, leave will ordinarily be granted if the order below was a final order.
Were leave to be granted, the appellant submits that it would rely on three of the proposed grounds of appeal pressed in the application before the primary judge, stated by the appellant as follows:
Proposed Ground 3: Did the Tribunal have jurisdiction, in considering a fencing repair matter under the Common Boundaries Act, to make a finding as to the correct boundaries between the two properties
Proposed Ground 4: Did the Tribunal err in fact in [determining] the correct boundary was other than the current fence-line between the two blocks
Proposed Ground 6: Did the Tribunal err in law and in fact in accepting there was evidence from both parties, albeit without reasoning, as to whether tree 5 was required to be removed, in determining by itself that the tree needed to be removed
In written submissions, the appellant advanced Proposed Grounds Three and Four together, and advanced Proposed Ground Six separately. Proposed Grounds Three and Four: Jurisdiction under the Common Boundaries Act 1981 (ACT)
The appellant submitted that ACAT possesses no jurisdiction to determine applications other than in accordance with statute.
The appellant outlined relevant law in their written submissions. Relevantly, the appellant submitted that the separation of ss 4 and 5 of the Common Boundaries Act 1981 (ACT) (Common Boundaries Act), which made provisions for applications for a “new fence determination”, and a “repair determination” respectively, is “more than merely superficial”. They submitted that the powers available to ACAT in determining each kind of application are different, as contained in ss 10 and 11, and submitted that “significantly, the two do not match”.
Section 10 provides the following:
10 ACAT powers—new fence determination (1) This section applies if the ACAT holds a hearing on an application for a new fence determination. (2) The ACAT may determine— (a) the nature of the fence that should be erected between the parcels of land occupied by the parties; and (b) the line where the fence should be erected; and (c) the party who should be responsible for erecting the fence; and (d) the amount that should be contributed by the other party to the cost of erecting the fence; and (e) how, and by when, the amount should be paid to the party responsible for erecting the fence. (3) If a party asks the ACAT to determine that a basic fence is to be erected between the parcels of land to which the application relates, the ACAT must not require the party to contribute more than ½ the cost of erecting a basic fence between the parcels. (4) Subsection (3) does not apply in relation to parcels of land if the ACAT is satisfied that— (a) it is not practicable for a basic fence to be erected between the parcels of land; or (b) there are special circumstances that require a fence, other than a basic fence, to be erected.
11 ACAT powers—repair determination (1) This section applies if the ACAT holds a hearing on an application for a repair determination. (2) The ACAT must determine if the fence to which the application relates is in need of repair or replacement. (3) If the ACAT determines that the fence is in need of repair or replacement, the ACAT may determine— (a) whether the party other than the applicant should be required to contribute to the cost of the repair or replacement of the fence; and (b) the nature of the repair that is required or the nature of the replacement fence that should be erected; and (c) the party who should be responsible for the repair or replacement; and (d) the amount that should be contributed by the other party to the cost of the repair or replacement; and (e) how, and by when, the amount should be paid to the party responsible for the repair or replacement. (4) For the purpose of determining the amount that should be contributed under subsection (3) (d), the ACAT must apply the principle that the cost should be borne by the parties in equal proportions unless there are circumstances that make it just that 1 party bears a greater proportion of the cost than the other party.
The appellant submitted that there is no power conferred under s 11 for ACAT to determine the line on which a replacement fence should be built. Further, a direct comparison between s 10 and s 11 makes it clear that this discrepancy is by design. The appellant submitted that the legislature did not intend for ACAT to determine fence lines in applications to repair or replace existing fences. Therefore, the appellant submitted that in doing so in its 2014 decision, ACAT acted “ultra vires”.
The respondents in written submissions summarised the appellant’s submissions in respect of grounds three and four. The respondents submitted that these submissions are largely assertions without basis or authority.
Proposed Ground Six
The appellant submitted that the Appeal Tribunal acknowledged that it had received opinion evidence from Mr Streatfeild, a builder, that the fence as ordered did not require the removal of tree 5. It was submitted that the Appeal Tribunal contrasted this with assertions from the respondents and determined that “it must approach the task with a degree of common sense”. The Appeal Tribunal then determined that there is insufficient space between tree 5 and the fence.
The appellant submitted that this reasoning was difficult to follow, on the basis that second hand assertions from parties cannot be regarded as being on the same level as an opinion from an expert who is not a party. It was submitted that in the absence of any compelling reason to reject Mr Streatfeild’s opinion, his evidence ought to have been accepted, and the orders accordingly should have included that tree 5 be retained.
Consideration
In relation to the fence matter, just as for the nuisance matter, the respondents submitted that the appellant in this appeal sought to “reventilate” the matter heard and decided by the primary judge “in an effort to get a different decision from this court”. The respondent submitted that this is demonstrated by the structure of the appellant’s submissions, in that the appellant’s submissions “simply recite and reargue the appellant’s submissions to the primary judge and argue that his Honour made ‘errors of law’”.
The respondents submitted that s 86(3) of the ACAT Act grants the exercise of a broad judicial discretion to the primary judge in respect of the application for leave to appeal, in accordance with Department of Premier and Cabinet v Hulls, adopted in Wiser at [3]. The respondents submitted that for a challenge to a discretionary decision to succeed on appeal, the appellant must show an error of principle or demonstrate some other of the grounds identified in House v The King.
It is not sufficient that this court form the view that it would have exercised the relevant discretion differently. It is for the appellant to demonstrate that the primary judge erred as a matter of principle, or failed to have regard to a relevant consideration, or had regard to an irrelevant consideration, or made a material error of fact or law, or otherwise arrived at an outcome that was plainly unjust or unreasonable.
The primary judge clearly explained his reasoning on Grounds Three and Four at paragraphs [84]-[94] of his judgment.
The primary judge outlined that the grounds of appeal suggested that findings were made by the Appeal Tribunal. The primary judge emphasised that this was not the case at [84]- [86] of the judgment:
While the terms of these grounds of appeal suggest that some findings were made by the Appeal Tribunal about the location of the common boundary, that was not the case. Rather the submissions of the applicant were directed to a somewhat different jurisdictional issue. 85. For the purposes of these grounds it is necessary to understand that the 2014 orders included a requirement that the fence be constructed on the boundary between the properties: 1. That a fence is to be constructed on the boundary between the applicants and the respondent. … 3. That the fence referred to in order 1 should be constructed on the boundary between the properties as depicted in the Survey drawing attached to the Survey Certificate dated 13 May 2014, prepared by Mail McDonald Barnsley Pty Ltd. 86. Order 3 made as part of the 2016 orders was to the same effect as order 1 of the 2014 orders, and order 4 of the 2016 orders expressly picked up order 3 of the 2014 orders.
In assessing this proposed ground of appeal at [88], the primary judge noted:
(a) there was no appeal against the 2014 orders; (b) these issues were not raised at the time of the application for variation of the borders in 2016; and (c) the appeal to the Appeal Tribunal did not raise this issue. Thus this appears to be a point raised for the first time.
The primary judge accepted that there is a distinction between the powers given to the ACAT under s 10 and s 11 of the Common Boundaries Act at [89].
The primary judge at [91] went on to find the overall purpose of the Common Boundaries Act does not support an interpretation that “would compel that the errors in the location of fences be forever perpetuated” by reason of an obligation to replace a fence that was not located on the common boundary.
The primary judge referred to four reasons why, in his view, the leave to appeal on the ground should be refused at [93]:
(a) Although the proposition put forward by the applicant is arguable, having regard to the matters referred to above, the argument is weak. (b) The argument was never raised previously. (c) There was no appeal from the 2014 decision which permitted construction of a replacement fence along the boundary. (d) Had the matter been properly raised and been found to be correct, then the respondents could have filed an application to permit the construction of a new fence along the boundary and hence overcome any anomalous jurisdictional impediment to the orders being made.
In summary, the primary judge accepted that the appellant’s proposition was arguable, but found that the argument was weak. Additionally, the primary judge relied on the fact that the argument was not previously raised. He noted that there was no appeal from the 2014 decision permitting construction of the appellant’s fence along the boundary. The primary judge also found that had the matter been raised, the respondents could have filed an application to overcome any “anomalous jurisdictional impediment”. These findings by the primary judge were in our view made on a sound basis, and set out in considerable detail and analysis in the judgment as outlined above.
In our view, the appellants have not demonstrated error in the exercise of the discretion by the primary judge.
Proposed Ground Six: “The removal of tree 5”
The respondents submitted that the appellant’s written submissions do not establish error which would require this court to overturn the primary judge’s decision on this issue.
The primary judge dealt with this issue at paragraphs [95]-[105] of the judgment. The primary judge referred to the evidence of Mr Streatfeild and that his principal area of expertise was town planning and development assessment. The primary judge also underlined the fact that no reasons were provided for his conclusion that the remainder of the trees “do not impede to construction of the fence”. The primary judge referred to the reasons of the Appeal Tribunal at [98]:
The reasons of the Appeal Tribunal on this point were as follows: In relation to tree 5, the Appeal Tribunal is satisfied of the following facts: Tree 5 has a trunk that in May 2014 was 7cm from the boundary. Given the tree is alive and still growing, it can be inferred that the trunk is likely to be closer to the boundary in 2017 and closer again in future years. Tree trunks are not always perfectly circular, they are irregular in shape and can vary in their diameter over the height of the tree. The fence to be constructed will be of hardwood with steel posts, lapped and capped. While the boundary line has no thickness, the fence does – palings are generally about 1cm thick, the posts and rails are several centimetres each. This fence is to be constructed with the palings on the boundary, the posts and rails on the respondents’ side. Location of the posts in relation to tree 5 is not specified. There is no evidence or agreement as to the minimum space required to construct a fence of the kind proposed. Mr Streatfeild, who is a builder but not a fencer, considers that the space between boundary and trunk is sufficient that the fence can be built without removal of tree 5. The evidence of Mr Streatfeild is a bare opinion and does not disclose any reasoning. The respondents, who are not builders or fencers but have been dealing with the fencing contractor who will do the work, say that removal of tree 5 is necessary, but again no reasoning is provided. When orders for the construction of a fence are varied to enable their implementation, the Tribunal should approach the task with a degree of common sense. Taking into account that competing views have been expressed, the Appeal Tribunal considers that the space available is insufficient in practical terms and that removal of tree 5 is necessary for construction of the fence. The Appeal Tribunal is satisfied that both tree 4 and tree 5 require removal for construction of the fence. It follows that the Tribunal did not err in fact when making that finding.
The 2014 orders and the 2016 orders did not compel the removal of any trees. The 2014 orders permitted “trimming, pruning or removal in order to enable the construction of the fence required by order 1”. That was picked up in the 2016 orders which also made express provision as to the identity of the contractor to undertake the “removal of trees necessary to enable the construction of the fence” (order 6). That the trees required to be removed included trees 4 and 5 is made clear by the reasons given for the Tribunal’s decision which make express reference to the need to remove trees 4 and 5 (at [38]), the fact that the removal of trees 1, 2 and 3 were not required to be removed for the purpose of replacing the fence in question (at [41]) and the fact that the Conservator had approved the removal of tree number 4, the only tree for which approval was required (at [40]).
The appeal to the Appeal Tribunal asserted that: “The Tribunal erred in law in ordering the removal of trees 4 and 5 in the absence of evidence requiring it.” That ground of appeal was misconceived having regard to the permissive nature of the orders, although it is true that the orders were based upon quotations which contemplated the removal of those trees. Given that the removal of those trees was permitted by the 2014 orders and there was no appeal from that decision, it was open to the Tribunal in 2016 to proceed in a manner that it did – which simply enforced the existing orders based upon quotations for that work in the light of the fact that there was no barrier to the removal of trees as a result of the decision of the Conservator.
The primary judge concluded that this ground of appeal was based on a misconception of the process undertaken by the tribunal in 2016, and declined to grant leave to appeal.
We find that this proposed ground of appeal proceeds on a misconception. The tribunal did not order the removal of tree 5. This ground of appeal is based on a misconception of the process undertaken by the tribunal.
Conclusion to the Nuisance and Fence Appeals
Orders
Associate:
Date: 14 February 2019
Campbell
Blackshaw [2019] ACTCA 1