Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 22, 82

Common Boundaries Act 1981 ss 8, 14, 15, 22

Magistrates Court (Civil Jurisdiction) Act 1982 s 234

(repealed)

Supreme Court Act 1933 s70 (repealed)

Subordinate

Legislation cited: ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) r 21

Court Procedures Rules 2006 r 1620

Supreme Court Rules 1937 Order 42A r 2 (repealed)

Cases cited: B&T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and Anor [2013] ACTSC 219

Blackshaw & Evans v Campbell [2016] ACAT 80

Blackshaw & Evans v Campbell (No.2) [2016] ACAT 108

Campbell v Blackshaw & Evans [2017] ACAT 64

Brunskill v Sovereign Marine & General Insurance Co Ltd [1985] HCA 61; (1985) 62 ALR 53

Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; (1970) 124 CLR 192

Hamod v Suncorp Metway Insurance Ltd [2006] NSWCA 243 Mansour v Dangar [2017] ACAT 49

Minister for Immigration and Citizenship v Li [2013] HCA 18

Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513

Roberts v Morgan & Anor [2017] ACAT 70

Sydney Water Corporation v Caruso & Ors [2009] NSWCA 391

The Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207

Volanne Pty Ltd v International Consulting and Business Management (ICBM) Pty Ltd (No 3) [2017] ACTCA 43

1. Order 13 of the orders of 21 July 2016 is amended to read:

"Any monies paid by Adam Blackshaw and Robyn Evans on behalf of Maryanne Campbell pursuant to these orders must be repaid by Maryanne Campbell to them within seven days."

1. The decision subject to appeal is otherwise confirmed.

1. The Registry is directed to re-issue the orders of 21 July 2016 with this amendment.

1. This appeal is from a decision of the Tribunal on 21 July 2016 (the variation decision) by which the Tribunal made orders varying orders made two years earlier for construction of a new boundary fence between the appellant's and respondents' properties. In making that decision the Tribunal had refused the appellant's application for an adjournment of the hearing; dismissed the appellant's application for variation of the fence orders; and had not heard certain evidence. The written reasons for the variation decision are reported at Blackshaw & Evans v Campbell [2016] ACAT 80.
2. The questions raised on the appeal are:
   • (a) Did the Tribunal err in refusing to adjourn the hearing when the respondent's solicitor said the appellant was unwell, unable to attend the hearing and incapable of giving instructions, and when the appellant wanted to obtain a quote to put before the Tribunal?
   • (b) Did the Tribunal err in refusing to hear witnesses called by the appellant at the hearing?
   • (c) Did the Tribunal err in the content of the orders it made, specifically by requiring removal of two trees and in ordering interest be payable on outstanding amounts, compounding monthly?
3. To properly understand the questions raised on appeal it is necessary to outline the conduct of the proceedings in some detail.

1. The appellant owns a property at 181 Mouat Street, Lyneham and the respondents own and live at the adjacent property, 179 Mouat Street. Between the two properties, extending from the rear of the block towards the street is a dilapidated paling fence (the fence). The fence ends some metres from the street. Commencing at roughly the halfway point on that boundary, and extending along the boundary towards Mouat Street, is a row of nine trees. The centre of the tree trunks are, according to a survey, on the appellant's land but located 17 to 63 centimetres from the boundary. Due to the age and size of the trees one trunk now extends over the boundary into the respondents land, and some other trunks are close to it. The trees' upper branches hang over the boundary and encroach into the respondents' land by some two to three metres.
2. In 2014 the Tribunal heard an application by the respondents under section 8 of the Common Boundaries Act 1981 (the CB Act) for orders for replacement of the fence. The CB Act is highly prescriptive, both in the procedure to be followed to enable an application to be brought, and in the content of the 'determination' that can be made by the Tribunal if satisfied of relevant matters. After hearing an application, if satisfied of specified matters, the Tribunal issues a determination in the form of orders setting out specifically what is to be done, and by whom, in relation to the fence.
3. In this case, after hearing from the parties, the Tribunal decided the fence had to be replaced (the fence decision) and issued comprehensive orders in the following terms[1] on 14 May 2014:
   1. That a fence is to be constructed on the boundary between the applicants and the respondent.
   2. That the construction of the fence referred to in order 1 includes:
      • (a) the removal of the existing fence and materials;
   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.
   4. That the fence referred to in order 1 will be :
      • (a) constructed of hardwood palings;
      • (b) be an overlapping hardwood paling fence with metal capping along its length and the metal used in upright supports and metal capping will be 'powder coated' metal;
      • (c) be 2.1 metres in height for its length;
   5. That the fence referred to in order 1 will extend from the back rear corner of the adjoining properties to the point, nearest Mouat Street, of the front building line of the properties.
   6. That the:

1. applicants may arrange for up to 2 quotes in relations to the construction of the fence referred to in order1; and 2. respondent may arrange for up to 2 quotes in relation to the construction of the fence referred to in order 1; and

1. unless otherwise agreed between the parties the fencing contractor who provides the cheapest of the quote or quotes provided is to be engaged to construct the fence. 7. In relation to the cost of the construction of the fence referred to in order 1, this amount will include the cost of engaging a tree surgeon to undertake any work, consistent with the advice of the Conservator of Flora and Fauna, as required in relation to trees which may be impacted by or require trimming, pruning or removal in order to enable the construction of the fence referred to in order 1. 8. That the:

1. the applicants may arrange for up to 2 quotes by a qualified tree surgeon; and 2. the respondent may arrange for up to 2 quotes by a qualified tree surgeon; and

1. unless otherwise agreed between the parties the tree surgeon who provides the cheapest of the quote/quotes is to be engaged to undertake the work referred to in order 7 above. 9. That the quotes referred to in orders 6 and 8 are to be obtained and provided to the applicants by close of business 11 June 2014,or, in relation to order 8, with 30 days of the advice of the Conservator of Flora and Fauna. 10. Any agreement between the parties concerning the selection of, either the cheapest quote in accordance with orders 6(c) and 8(c), is to be recorded, in writing and signed by the applicants and respondent by close of business 17 June 2014 or a later date in relation to order 8 as set out in order 9, or the cheapest quite is to be used. 11. The applicants are responsible for arranging for work to be undertaken in relation to order 1 and order 7 in accordance with the agreed on cheapest quote. 12. The parties are to each pay half of the cost, including the costs referred to in order 7, of the construction of the fence referred to in order 1. 13. Any amount payable by the parties is to be paid in equal share to the relevant contractor selected for undertaking the work referred to in orders 1 and 8 by the date for payment of any amount nominated by the relevant contractor. 14. The respondent will ensure that access to her property is at all times available to relevant contractors to facilitate the timely completion of work to be undertaken in accordance with these orders.

It is noted that the applicants wilt the respondent in relation to advising her tenants about times during which access may be required in order for work relating to these orders to be undertaken. The applicants undertake to provide email advice to the respondent providing where possible 2 days' notice.

1. On 17 June 2014 the respondents contacted the Tribunal with concerns that they had not received any quotes from the appellant as contemplated by orders 6 and 8. Although there is no time frame expressed in those orders the respondents wrote "we were supposed to have agreed on a quote by today." On 8 July 2014 the respondents sent a further email to the Tribunal in which they stated they had sent the appellant three quotes, but she had not responded nor had she provided any quotes in return. The matter was relisted before the same Tribunal on 31 July 2014 for these issues to be considered.
2. On 31 July 2014, the respondents appeared before the Tribunal, there was no appearance by or on behalf of the appellant. The Tribunal was satisfied that the appellant had been notified of the relisting, and proceeded to consider the information provided by the respondents, which now included an email sent by the appellant to them on 14 July 2014. In that email the appellant expressed concerns as to the lack of professionalism of some of the quotes obtained by the respondents. The Tribunal considered this information and issued further orders:
   1. In accordance with orders 6(c) and 9 of the orders made 14 May 2014 the applicants are to arrange for construction of the fence by Jeremy Fosters Fencing (Quote #19) dated 24 July 2014 in the sum of
      1. $2,926.00 (inclusive GST) if trees are removed; or
      2. $3,875.96 (inclusive GST) if trees remain in place. The higher amount being for the construction of a retaining wall it trees are left in place.
   2. In relation to whether the amount appearing in Order 1(a) or 1(b) is payable by the parties this will be subject to the advice of the Conservator of Flora and Fauna in ACT.
   3. Any amount payable in relation to the construction of the fence, including other amounts referred to in the orders made on 14 May 2014, is to be paid by the parties direct to the responsible contractor as set out in Order 13 of the orders made.
3. Together with the orders of 14 May 2016, the orders 31 July 2014 are referred to in this decision as 'the fence orders'.
4. In late 2015 the respondents approached the Tribunal again, complaining of inability to effect the fence orders. On 3 December 2015 the respondents filed an application seeking enforcement of the fence orders or alternatively variation of the fence orders to implement the 2014 decision (the variation application).
5. Also on 3 December 2015, the respondents filed an application in nuisance against the appellant seeking removal of all of the trees on the fence line, on the basis, among other things, that their roots caused blockage of drains leading to flooding of the respondents' property, and the overhanging branches encroached unreasonably into the respondents' property.
6. On 12 February 2016 the appellant filed a response to the variation application, and a competing application for variation of the fence orders. In these documents the appellant asserted that on or around 5 June 2014 she had provided a quote for replacement of the fence by PlaceAce Pty Ltd dated 5 June 2014 to the respondents, that this quote was the cheapest of the quotes under order 6 of the fence orders, and that the fence orders should be varied to require construction of the fence by PlaceAce Pty Ltd in accordance with that quote.
7. The competing variation applications (the fence matter) and the nuisance application were all listed to be heard together, it being thought that this would be efficient given the common facts.
8. The course to hearing did not run smoothly. There were initial problems with the availability of the appellant. In her response dated 12 February 2016, the appellant advised the Tribunal she would be away from Canberra for two and a half months commencing the last week in February 2016. The matters had a number of listings for hearing, which never eventuated, on each occasion being adjourned on the application of the appellant.[2] On 16 May 2016, in adjourning the penultimate scheduled hearing, the Tribunal ordered that the matter was not to be further adjourned "except in extreme and unforeseen emergencies to be independently corroborated."
9. The date of 24 June 2016 was then allocated for the matters to be heard, more than six months after the respondents' applications had been filed. It is worth noting that this is approximately twice the usual amount of time expected for a contested civil dispute matter to be heard in the tribunal.
10. In the days prior to the 24 June hearing, the appellant's solicitor by email made a further adjournment application, as described at paragraphs 23 - 26 of the Tribunal's reasons for decision:
    1. On 21 June 2016, the solicitor for the respondent sent an email to the tribunal advising that his client was suffering from serious problems affecting her cognitive skills. A medical certificate was provided with an indication that the respondent was not fit for work and may need to be referred interstate for specialist treatment. The email also indicated that the respondent would be seeing a specialist medical practitioner on 24 June 2016, the date of the hearing. A letter from the specialist medical centre was also provided, indicating that the respondent had an appointment for a preliminary consultation on that date.
    2. The email sought to adjourn the hearing further until "sometime in the August." The email noted that due to the respondent's health issues, the solicitor had been having difficulties taking instructions and that further time would be required to do this. The email proposed that the matter be set down for directions sometime in July, when the solicitors considered that they would be in a better position to advise the tribunal about the above matters.
    3. I directed that any application for adjournment should be made in formal fashion rather than via email. An application was filed by the respondent on 22 June 2016. The application annexed the email, together with a copy of a medical certificate. That medical certificate was dated 20 June 2016, and advised that the respondent was suffering from "serious abnormal liver functions affecting her cognitive skills", and that the respondent had been referred for further medical care. Also provided as part of the application, was a medical certificate from the same doctor dated 16 June 2016, certifying that the respondent was suffering from "a medical condition and is unable to resume her usual duties." This certificate was from 16 June until 23 June 2016. An earlier medical certificate was also provided dated 9 June 2016, certifying that the respondent was suffering from liver disorder and was unfit to carry out her usual duties on 9, 10 and 13 June. A further certificate was provided dated 11 May 2016, certifying that the respondent was suffering from a medical condition and was unfit to resume her usual duties on 11, 12, 13, 16 and 17 May 2016. A further certificate was provided certifying that the respondent was suffering from a medical condition and was unfit to resume her usual duties from 8 to 29 April 2016. This appears to have been dated 2 April 2016, although the copy was not clear.
    4. The final document annexed to the application was a letter from Canberra Gastroenterology Centre dated 20 June 2016 to the respondent, concerning an initial consultation appointment on 24 June 2016. The letter set out that this was a consultation, with no reference to an actual procedure on that date. There was no explanation as to why this appointment had to be held on 24 June, which was the date set down for hearing by Senior Member Anforth.
11. The Tribunal commenced the hearing on 24 June 2016 with a scheduled view of the trees and fence on site at 9:30 am. Although the appellant was not present at the view, her solicitor and a number of persons who wished to give evidence on her behalf were. Upon resuming the hearing at the Tribunal, the appellant's solicitor then made a formal adjournment application. The Tribunal's reasons state:
    1. The solicitor for the respondent sought to adjourn both matters, due to his client's condition. He was unable to explain what steps the respondent had taken to comply with the original orders of Senior Member Corby, or what further reports and written statements were likely to be required by his client in relation to the nuisance matter.
    2. I determined that the nuisance claim should be further adjourned to a date to be fixed by the General President, and before a member to be nominated by her. Notwithstanding her earlier decision that these two matters should be determined together, it seemed to me that the nature of the evidence that would have to be given on that case, and the desirability of the respondent being present outweighed the inconvenience both to the applicants and the tribunal of the matter being further adjourned. I considered that it would not be possible to do justice to the respondent to proceed with this matter in her absence, notwithstanding that she had not complied with the orders of the tribunal to file reports and witness statements upon which she might propose to rely.
    3. In the absence of these, I was not prepared to hear evidence from those people who had attended the view, and who seemed to want to give evidence on behalf of the respondent. To have allowed this where witness statements had been not been filed would have been unfair to the applicants, and would be impeded the tribunal in properly dealing with the matter.
    4. In relation to the fencing matter, I determined that the matter should go ahead and I refused the application to adjourn.
    5. I noted that the respondent had produced the medical evidence referred to above. The respondent appears to operate a personal counselling business under the name of "Funnybone Counselling". The website indicates that the respondent provides counselling services, using humour and meditation. In the absence of any other evidence I take this to be the 'work' which the opinions in the medical certificates indicated she was unfit to perform.
    6. While the tribunal is in no position to rebut the medical opinion, it is not clear that the medical opinion that she is presently unfit to engage in the skilled business of interpersonal counselling (as the medical reports indicate) would prevent her from giving evidence, or instructions to her solicitor, about a long-standing dispute with limited parameters. I was not prepared to accept the argument from the bar table that because the medical reports referred to her not being able to carry out her normal duties, she would have been prevented from giving instructions on a dispute with which she was very familiar. There was no indication that she was in hospital, and indeed the appointment from the Gastroenterology Centre indicated that she was not. There was no satisfactory explanation as to why the appointment at the Centre on the same date as the hearing date [which it appeared she had made] could not have been adjourned. Nor was there any indication as to whether the respondent had had regard to the comments from Senior Member Anforth about the importance of the matter proceeding on 24 June 2016. The letter indicated that the appointment was for a preliminary discussion in relation to a certain procedure, rather than the procedure itself, and in the ordinary course one can presume that this could have been easily altered to another date.
12. Despite adjourning the nuisance application[3], the Tribunal proceeded to consider the remaining applications, being the application of the appellant for variation of the fence orders and application of the respondents for variation and enforcement of the fence orders. In relation to the appellants' variation application the Tribunal found:
    1. The application of the respondent dated 12 February 2016 seeking to substitute another quotation from the one that was the subject of the orders of Senior Member Corby, was also dismissed. There is no evidence beyond the respondent's assertion that she had either obtained another quotation or provided it to the other party or the tribunal. The applicants denied that they had seen such a quotation and there is no evidence provided to the tribunal that it existed. The tribunal does not accept the credibility of this claim by the respondent, in the absence of compelling evidence that the quotation had been obtained and provided to all parties, as required by the earlier orders.
13. The Tribunal then went on to consider the respondents' variation and enforcement application as follows:

.... Senior Member Corby's orders remain in force. The applicants are entitled to the benefit of them and the respondent is not entitled to further delay their implementation.

1. It is necessary to consider those original orders further because of the time that has elapsed since they were made. The amount of time that has elapsed between the original quotations and the present such that one could not expect the quotation of the fencing contractor referred to in the order of Senior Member Corby of 31 July 2014 to be current. Further, no fencing contractor or tree removal contractor would be likely to undertake the work in circumstances where there is concern as to whether they would be paid. This situation would arise where each party was directed to pay half the costs to the contractor. The contractor is entitled to certainty of payment when engaged.
2. The Tribunal reserved its decision on 24 June 2016, and directed the respondents to obtain and file an updated quote from the fencing contractor. On 21 July 2016 the Tribunal delivered its decision and written reasons. The Tribunal considered the updated quote for the work which had been provided by the respondents pursuant to the Tribunal's directions. The Tribunal also noted that the Conservator had given approval for removal of the one regulated tree, and had advised that the remaining eight trees did not require approval for removal. The Tribunal wrote that given the difficulties in implementing the fence orders it would make directions for the entry of contractors onto the land of the appellant in order to undertake the work. Finally, the Tribunal expressed concerns that the appellant might not pay her share of the cost of the work, thereby impeding construction of the new fence:
   1. As indicated above, the question of payment is a matter that the tribunal should turn its mind to. The original order of Senior Member Corby provided for payment by the parties in equal shares to the relevant contractor. Bearing in mind the difficulties between the parties, I will order that the applicants are to engage the fencing and tree removal companies. If the respondent does not pay her half share of the costs within seven days of being provided by the applicants with the contractors' accounts on completion, then the applicants may pay the whole amount and recover half of the cost from the respondent.
   2. I will make this order to ensure that the removal of the old fence and trees, and the construction of the new fence is not impeded by the respondent refusing to pay her share. I will also provide that if one party has paid the contractors and seeks to recover the balance from the other, then if that half share is not paid in full within 14 days, interest will accrue at the rate from time to time applicable to judgments in the Magistrates Court, calculated on a daily basis. Accrued interest will be added to the outstanding sum and be capitalised at the end of each month, and interest will continue to accrue on that capitalised sum until paid.
3. The Tribunal's final orders (the final orders) were:
   1. The application of the respondent dated 12 February 2016 is dismissed.
   2. The application of the respondent dated 22 June 2016 is dismissed.
   3. A fence is to be constructed on the boundary between the properties of the applicants and the respondent.
   4. The fence referred to in order 3 is to be constructed in accordance with the orders 2, 3, 4, 5 and 7 of the orders of Senior Member Corby dated 14 May 2014, a copy of which is annexed to these reasons.
   5. The fence is to be constructed by Fosters Tradies for the sum of $3,814.80, in accordance with their quotation dated 28 June 2016.
   6. The removal of trees necessary to enable the construction of the fence is to be undertaken by Specialized Arbor Pty Ltd for the sum of $3,322.00, in accordance with their quotation dated 30 June 2016.
   7. The removal of trees necessary to construct the fence shall be undertaken in a manner consistent with the decision of a delegate of the Conservator of Flora and Fauna of 24 December 2014.
   8. The applicants are responsible for arranging for work to be undertaken in accordance with these orders.
   9. The Tribunal directs that the contractors referred to in orders 5 and 6, their servants and agents are authorised pursuant to section 22 of the Common Boundaries Act 1981 to enter on to the land of the respondent at 181 Mouat Street, Lyneham for the purposes of carrying out the work specified in these orders. Entry is authorised pursuant to subsection 22(4) of the Act at any time between Monday and Friday inclusive in any week between the hours of 8am and 5pm.
   10. The applicants must give the respondent two days' email advice of the intended commencement of the work referred to in these orders.
   11. The respondent must ensure that access to her property to undertake the work specified in these orders is at all times available to the contractors referred to in these orders.
   12. All amounts payable for the work specified in these orders is to be paid in equal shares by the applicants on the one hand and the respondent on the other. If upon completion of the work, the respondent fails to pay to the applicant or to the contractors her share of the costs, then the applicants may pay those costs on the behalf of the respondent.
   13. Any monies paid by the applicants on the behalf of the respondent pursuant to these orders must be repaid by the respondent to the applicants within seven days. If the respondent fails to pay the whole amount within seven days, interest will accrue on that debt calculated on a daily basis at the rate payable from time to time on judgments in the Magistrates Court of the Territory. Unpaid interest may be capitalised and added to the principal sum outstanding at the end of each month.

1. An application to appeal the final orders was filed on 12 August 2016. The application set out the following grounds of appeal:
   • (a) The procedure of the Tribunal was unreasonable to such an extent that the tribunal committed an error of law.
   • (b) The Tribunal refused to consider certain evidence regarding quotes for necessary work.
   • (c) The Tribunal ordered the removal of tree 5 when there was no evidence or basis for that order.
   • (d) The Tribunal ordered the removal of tree 4 when there was no evidence or basis for that order.
   • (e) The Tribunal's order regarding the imposition and calculation of interest was ultra vires.
2. The application for appeal indicated that the appellant sought to introduce new evidence on appeal, and that the appeal should proceed as a new application rather than as a review because the nature of the errors identified meant that the Tribunal's decision was beyond power.
3. The orders sought in the application for appeal were that the final orders of 21 July 2016 "be set aside or varied as the Appeal Tribunal, properly informed sees fit".
4. The matter came before the Appeal Tribunal for directions on 19 September 2016. The appellant was directed to file submissions in relation to the grounds of appeal, together with a document listing the new evidence sought to be relied upon. Submissions, settled by Counsel, were filed on 10 October 2016. The submissions set out the nature of the further evidence sought to be relied upon at the hearing of the appeal, without identifying that evidence, as follows:
   1. Evidence of quotes for work to replace the fence;
   2. Evidence regarding the necessity (or lack thereof) of the removal of trees along the boundary;
   3. Evidence of work done to trim the trees on the boundary;
   4. Evidence of quotes for arborist work necessary to enable the construction of a fence along the boundary line; and
5. A further statement regarding the necessary and proper work to be done along the common boundary.

The Appellant reserves the right to put on further evidence relevant to the above matters in accordance with directions of the Tribunal as and when that evidence becomes available.

1. A further directions hearing was conducted on 18 October 2016. At that time the Appeal Tribunal asked the appellant's solicitor what orders were sought if the appeal was successful. This was to enable the respondents to determine whether they opposed the relief sought by the appellant. The appellant's solicitor was unable to advise the Appeal Tribunal what orders would be sought if the appeal was successful. Accordingly, the directions hearing was adjourned for a week and the appellant directed to file and serve a document setting out the orders that would be sought at the conclusion of the appeal, if it was successful.
2. The matter next came before the Tribunal on 24 October 2016. On 21 October the appellants solicitor had filed a letter advising the orders that would be sought at the conclusion of the fence appeal, as follows:

...orders that the parties provide new quotes for fencing with terms for mutual payment in equal shares...

...mutually suitable orders regarding the timing of the construction and payment for the fencing.

1. This information, although superficially compliant with the Appeal Tribunal's direction, did not provide sufficient information as to the orders sought by the appellant. As can be seen from the detail of the fence orders and the final orders, the terms of orders made to effect a determination under the CB Act are detailed and precisely spell out the obligations of each party. Fence orders need to be worded with clarity, both because this is dictated by the CB Act and also in order that those orders be enforceable. In the context of an appeal from fence orders the appellant must set out with similar clarity the orders sought if the appeal is successful, so as to enable the other party to decide whether to oppose the appeal, or not. Clarity also enables the Appeal Tribunal to determine whether the orders sought were within the jurisdiction of the original Tribunal, and thus within the jurisdiction of the Appeal Tribunal.[4]
2. The Appeal Tribunal accordingly directed the appellant to file and serve by 7 November 2016 an amended application for appeal setting out the precise orders sought, and directed the respondents to file and serve submissions in reply and their response to the orders sought by 18 November 2016. The appeal was listed for hearing on 21 November 2016.[5]
3. The appellant had also by the letter of 21 October 2016 sought that the parties attend mediation before the appeal be set down to hearing, and this request was repeated at the directions hearing on 24 October 2017. The Appeal Tribunal declined to order that the matter be referred for mediation prior to hearing of the appeal, for reasons detailed in the nuisance appeal decision.[6]
4. In the weeks leading up to the hearing of the appeals on 21 November 2016 the appellant personally emailed the tribunal a number of documents. None of those documents amounted to an amended application for appeal. The appellant also contacted the registry by telephone to advise she had dismissed her solicitors, and sought an adjournment of the hearing of the appeals. The appellant ultimately retained a new solicitor. On Friday 18 November 2016 a notice of contact details advising of the new solicitor was filed with the tribunal.
5. On the morning of the hearing of the appeals the new solicitor appeared with the appellant and sought an adjournment of the hearing of the two appeals. That application was unsuccessful, for the reasons set out in the nuisance appeal decision.[7] Additionally, in relation to this appeal, I noted that the grounds of appeal were clear and submissions settled by counsel addressing those grounds had already been filed. The appellant was present, legally represented, and able to provide instructions. It seemed to me that if an adjournment of the hearing of the fence orders appeal was granted, there was no certainty that the matter would be better placed to proceed on the next occasion given the past history.
6. I proceeded with the hearing of oral submissions on behalf of the parties, but made directions for the appellant to file her amended application and further written submissions after the hearing, with leave similarly granted to the respondents to file further written submissions.
7. The appellant filed an amended application for appeal and submissions on 28 November 2016, attaching the following documents which were sought to be relied upon as further evidence:
   • (a) Quotation No 14112016 by PlaceAce Pty Ltd.
   • (b) Report of PlaceAce Pty Ltd dated 7 November 2016.
   • (c) Report of Resolution Planning dated 22 June 2016.
   • (d) Report of Bevandra Architecture dated 22 June 2016.
8. The respondents filed their submissions in reply on 5 December 2016. The respondents did not oppose the Appeal Tribunal taking the fresh evidence into account, and accordingly the Appeal Tribunal has had regard to the additional documents filed by the appellant in consideration of the appeal.

The scope and conduct of the proceedings on 24 June 2016

1. In order to consider whether there was any error in the conduct of the hearing on 24 June 2016, or the variation decision of the Tribunal, it is useful to first consider the scope of the fence matter.
2. The fence matter involved competing applications for variation and enforcement of a determination previously made under the CB Act.
3. Section 14 of the CB Act provides that a party to a determination may apply to the tribunal for variation of the determination, and section 15 provides that the tribunal must deal with that application by listing it for conference or hearing. Subsection 15(5) provides that the tribunal must not make an order to vary a determination so that the determination as varied could not have been made on the original application.
4. Section 22 of the CB Act provides that when making a determination the tribunal may make directions about the entry of persons, such as contractors, on to the land. It was orders of this kind which the Tribunal took as being contemplated by the application for 'enforcement'.
5. Because the CB Act does not provide any further detail in relation to an application for variation the question arises, how far ranging is the hearing of such an application? What facts must the tribunal be satisfied of, and what is the legal test that must be met, before the tribunal will make orders varying a determination, or additional orders under section 22 of the CB Act? There are no reported decisions on this point. The relevant provisions have been essentially unchanged since passage of the CB Act in 1981. No assistance can be gleaned from the explanatory memorandum to the CB Act.
6. The variation power has been interpreted by the Tribunal as a power appropriately utilised for the purpose of achieving implementation of the original determination, whether by reason of updating references to quotes, making consequential orders when matters under the determination cannot be agreed or require clarification, or where unexpected problems arise during construction of the fence. Due to the public interest in finality of proceedings, the provisions of the CB Act permitting an application for variation are not treated as an avenue for an out of time appeal or a rehearing of the original matter.
7. While the Tribunal is able to make any order which might have been made on the original application when varying a determination, the bases on which it can decide to vary a determination are not unlimited.
8. The Tribunal was referring to this confined remit when it noted at paragraph 33 of the reasons for decision that the fence matter was a "dispute with limited parameters." The transcript of the hearing of 24 June 2016 shows numerous points where the Tribunal explained to the solicitor for the appellant that the fence orders having not been the subject of an appeal on the basis of the appellant's non-appearance on 31 July 2014 or the Tribunal's failure on that date to consider a quote dated 5 June 2014, the Tribunal did not consider it appropriate to entertain these arguments two years later through the vehicle of a variation application.[8]
9. The Tribunal noted its task was the making of such orders as were necessary to achieve implementation of the fence orders, rather than reviewing the correctness of those orders having been made. The Tribunal was correct to approach the variation applications in this manner.
10. There were three areas in which the fence orders required implementation:
    • (a) The factual question whether any of the trees required pruning, trimming or removal in order that the fence be constructed on the boundary.
    • (b) The factual question whether the Conservator had refused permission for removal of any of those trees (this would as contemplated by orders 1 and 2 of the orders of 31 July 2014 necessitate that the fence be constructed non-continuously and with a retaining wall).
    • (c) The currency of the quote for construction which was referred to in the orders of 31 July 2014.
11. Consideration of these issues, and the necessity for any orders under section 22 of the CB Act for entry onto land, was the arena of inquiry for the Tribunal on 24 June 2016.
12. There was no dispute that the Conservator had advised that all of the trees, including the regulated tree, could be removed. Equally, the staleness of the quote from Fosters Tradies was not contested. The disputed issues for the Tribunal were whether the fence could be constructed on the boundary without the removal, trimming or pruning of any trees, and whether orders should be made for entry on the land by contractors.

1. Against this background, I turn to the fresh evidence admitted on the appeal. The three witness statements filed by the appellant were comprehensive, but the bulk of the information contained in those statements was directed to the issues arising on the nuisance matter. The evidence of these witnesses pertaining to the construction of the fence can be summarised briefly.
2. The statement of Ms Strickland, in addition to summarising the evidence of other witnesses, asserted that on her inquiries:
   • (a) the survey filed by the appellant in the 2014 proceedings, being the survey by Mr Mayberry, was now considered to be questionable;
   • (b) older suburbs were problematic with boundary accuracy;
   • (c) contemporary survey instruments could not pinpoint with accuracy lengths of 40mm;
   • (d) no more accurate survey had been or would be obtained; and
   • (e) it was likely the trees were originally planted within the boundary.
3. None of this information is relevant to the issues to be considered at the hearing on 24 June 2016.
4. Accompanying the statement of Ms Strickland was a quotation from PlaceAce Pty Ltd for construction of a fence between the two properties, dated 14 November 2016. That quotation was for a different kind of fence than required by the fence orders, to be constructed not on the boundary but on the existing fence line. It too is not relevant to the issues being considered on 24 June 2016.
5. Mr Bevanda's report suggested that the fence should stop and start on either side of tree 4, and that trees 5 - 9 should be retained as the fence could stop at the front building line of the respondents' property.
6. The evidence that tree 5 could be retained on the basis that the fence could stop at the building line to the respondent's property is irrelevant: the fence orders provided that the fence must extend to "the point, nearest Mouat Street, of the front building line of the properties." The building line on the appellant's property was the building line closest to Mouat Street.
7. Had the Conservator advised that trees must be retained, the evidence of Mr Bevanda as to the mode of construction of a fence on either side of trees 4 and 5 would have been relevant. However, given the terms of the fence orders, and the Conservator having advised that the trees could all be removed, including the regulated tree, this question did not arise and this evidence of Mr Bevanda is irrelevant.
8. The report of Mr Streatfield from Resolution Planning expressed views that:
   • (a) the building line for the appellant's property is about 6.4m from the street, while the building line for the respondent's property is about 7.5m from the street;
   • (b) a fence could not be constructed on the respondent's property by reference to the appellants building line without planning approval;
   • (c) the fence could be replaced on the boundary without removal of any trees, by commencing the fence from behind tree 4; and
   • (d) even if the fence were to go as far forward as tree 5, the tree trunk was 7cm from the boundary and so the fence could be constructed without removal of that tree.
9. As with Mr Bevanda's evidence, the first three items of Mr Streatfield's evidence are irrelevant to the issues being considered by the Tribunal on 24 June 2016.
10. Mr Streatfield's opinion, as a person with experience and expertise in building, that the fence could be constructed without removal of tree 5, due to the space between boundary and trunk, is relevant to the issues raised on the variation application.

1. The ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) provides that an appeal from a decision of the tribunal is available on a question of fact or law. An appeal will be successful if it shown that any error found to have been made by the original tribunal was material to the outcome.[9]
2. Section 82 of the ACAT Act provides that the appeal tribunal may deal with the appeal as a new application or as a review.[10] Some of the principles applying to the conduct of an appeal are set out in paragraphs 17-29 of the decision of Mansour v Dangar [2017] ACAT 49. In deciding whether to proceed by way of a new application or by way of a review:
   1. ... the appeal tribunal is required by the ACAT Act to adopt a procedure which is as simple, quick, inexpensive and informal as is consistent with achieving justice, and the requirements of procedural fairness.[11]

1. ... Applications for appeal raising only questions of law or confined questions of fact are most expeditiously dealt with as a rehearing, occasionally with further evidence admitted in relation to areas of factual dispute. By contrast, where there appears to have been a real failure of process at the original hearing, such as a failure to hear both parties, the appeal might be heard as a new application. In such circumstances, this approach is often the simplest, quickest and most inexpensive way to achieve a fair and just outcome.
2. In this matter, the appellant submitted that because she had not been present or able to provide instructions at the hearing on 24 June 2016, she had not been accorded procedural fairness and effectively no hearing had taken place. For this reason, it was submitted, the hearing of the appeal should proceed as a new application. It was argued that only this process could effectively 'cure' the defects in the process below.
3. Where there has been a clear and substantial failure to accord procedural fairness at the original hearing, it is usually most efficient and inexpensive, and fairest, to conduct the appeal as a new application. It is often the best way to determine whether such error was material to the outcome.[12] However, it must be remembered that not every refusal of an adjournment, or conduct of a hearing in the absence of a party, constitutes a lack of procedural fairness. In addition, even where a lack of procedural fairness is made out, there are cases where the question of materiality can most efficiently be decided by conducting an appeal as a review, albeit with the admission of fresh evidence.
4. In this case, even after considering the fresh evidence, I am not satisfied that there was a failure to afford procedural fairness to the appellant. I am not satisfied that in any other respect proceeding to deal with the appeal as a new application would better meet the Tribunal's imperatives, consequently the hearing of the appeal proceeded as a review of the original decision, rather than the hearing of a new application.
5. I turn then to a consideration of the grounds of appeal.

Did the conduct of the hearing on 24 June 2016 amount to a failure to accord procedural fairness to the appellant?

1. The amended application for appeal states:
   1. The Tribunal erred in law in failing to provide procedural fairness to the Applicant at the hearing on 21 June 2016 (sic) in:

1. Proceeding with the view and hearing in the absence of the Applicant and in circumstances where the Applicant's legal representative was unable to obtain instructions 2. Failing to adjourn the proceedings in circumstances where the Tribunal accepted it would be unfair to proceed to the hearing of the Applicant's other matter in her absence;

1. Refusing permission for the Applicant to submit a fresh quotation when permitting the Respondents to do so; and

1. Refusing to permit the Applicant's witnesses, Deborah Strickland, Ted Streatfield and Stan Bevandra to give evidence.
2. Counsel's written submissions on behalf of the appellant expanded on points (a) to (d) as follows:
   1. ... firstly, the Appellant was indisposed attending to her health, but secondly and more importantly, the Appellant's medical condition affected her cognition, making it difficult for the Appellant to provide cogent, useful instructions to her lawyers.
   2. In these circumstances[the Tribunal] should have treated the Appellant as being functionally unrepresented as the most [the solicitor] could do is that which he did, namely attend and seek an adjournment until such time as the Appellant was able to provide him with proper instructions.
   3. [Point b] above are self-explanatory...
   4. It appears from the reasons that [the Tribunal] chose to proceed with the present claim because of the failure of the Appellant to comply with earlier orders and delays caused by the Appellant. Neither of these are good reasons to abrogate the Appellant's right to be heard, especially in circumstances where there was an explanation for the Appellant's non-compliance with earlier orders.
   5. Regarding [point (c)] ...This represents a further denial of procedural fairness, and is another aspect of the fundamentally unfair procedure adopted by [the Tribunal].
   6. Taken together, the procedural unfairness canvassed above amounts to both a denial of procedural fairness and to a decision so unreasonable that no reasonable decision maker would have made it, following on from the decision of the High Court in Minister for Immigration and citizenship v Li [2013] HCA 18.
3. Point (a) of the grounds of appeal argued that the Tribunal erred in proceeding with the hearing and view in circumstances where the appellant's solicitors were unable to obtain instructions. The reasons for decision set out at paragraphs 32 and 33 the Tribunal's finding, based on the information before it, that the appellant was not unfit to provide instructions. This factual inference was available to the Tribunal on the evidence before it. Noticeably missing from the further evidence sought to be adduced on appeal was any expert evidence which would indicate that the appellant was mentally unfit to instruct her solicitors on the relevant date. The Appeal Tribunal is not satisfied that the Tribunal erred in reaching the conclusion of fact that it did. Further, the Appeal Tribunal is not persuaded that the appellant's further instructions or presence on 24 June 2016 would have made a difference to the outcome of the proceedings given the ambit of the fence matter. The appellant has not sought to provide evidence herself on the hearing of the appeal, and the orders sought by the appellant remain fundamentally unchanged.
4. In relation to point (b), the appellant submitted that it was incorrect for the Tribunal to proceed to hear the fence matter, in circumstances where it found that the appropriate course was to adjourn the nuisance application. This submission fails to appreciate the difference in the scope of the two proceedings.
5. The nuisance application involved complicated contested facts, requiring the Tribunal to take evidence as to the history of the trees and the interference with the respondents' land, hear expert evidence about root incursions and over-hanging branches, and related matters, and hear the parties submissions on the oral evidence given. It was to be expected that the appellant would give evidence in those proceedings. There were a number of other witnesses who were proposed to give evidence in those proceedings, although their evidence had not been filed and served as directed. To conduct the nuisance hearing without their evidence would have been unfair to the appellant[13], to hear from those witnesses without prior notice of their evidence being given to the respondents would have been unfair to the respondents.[14] The Tribunal concluded that in the circumstances it was not possible to conduct that hearing fairly on the day.
6. By contrast, in the fence matter, final orders had been made some two years previously. Those orders had not been the subject of appeal. The proceedings were merely for a variation of those orders under the CB Act. The only questions within the ambit of that hearing were whether certain of the trees required removal for construction of the fence, and what the current cost of the work would be.
7. There was no legal necessity that the fence and nuisance matters be heard together. I am satisfied that the Tribunal did not err in failing to adjourn the fence matter, notwithstanding the decision to adjourn the nuisance matter.
8. In relation to point (c), the appellant submits that the Tribunal refused to allow the appellant to submit a fresh quotation, despite allowing the respondents to do so. Neither of these assertions are correct. The transcript for the hearing shows that at no time did the appellant's solicitor seek to submit a fresh quotation in relation to the fence matter.[15] Further, it was the Tribunal that directed the respondents to obtain an updated quote from the contractors named in the fence orders. This was in no way a re-opening of the issue of which contractor to use, which had been previously determined by the fence orders.
9. In relation to point (d), there was no denial of natural justice in refusing to take evidence from witnesses where that evidence went to the nuisance matter and historic issues rather than the questions properly raised on the application for variation of the fence orders. The situation is different, however, if the evidence was relevant to those questions, could have made a difference to the findings of fact, and could have thereby affected the outcome of the proceedings.
10. The opinion of Mr Streatfield that there was sufficient space for the fence to be constructed on the boundary without removal of tree 5 is relevant to the question of whether trees needed to be removed. While the report does little more than state the obvious physical facts, and express an opinion upon them, and although the Tribunal was not bound to adopt that opinion, and could inform itself also by reference to information from the respondents and what it observed at the view, I am satisfied that it is possible that the Tribunal might have reached a different conclusion if Mr Streatfield's opinion had been before it.
11. The transcript of the proceedings on 24 June 2016 demonstrates, however, that the Tribunal did not refuse to have regard to the evidence of Mr Streatfield in the fence matter. Rather, that evidence was not put before the Tribunal. At the commencement of the hearing the Tribunal noted a number of documents had been filed, which needed to be put on the relevant files. At no time did the solicitor for the appellant seek to have Mr Streatfield give oral evidence in relation to the fence matter, or to have Mr Streatfield's written statement of 22 June 2016 considered in relation to the questions raised in the fence matter.
12. The Tribunal took a defined approach to the two matters on 24 June 2016, dealing first with the request to adjourn the fence matter, which was refused, and then briefly adjourning. When the hearing resumed, the Tribunal turned to the application to adjourn the nuisance matter, and it was in this context that the question of the witnesses and witness statements was raised. The witnesses and witness statements were identified as evidence in reply to the evidence filed by the respondents on their nuisance application. After deciding to adjourn the nuisance matter the Tribunal returned to make orders on the fence matter. At this time the respondents specifically raised the question of whether or not trees would need to be removed, and the Tribunal indicated that this issue could be informed by the views of the contractor.[16] The solicitor for the appellant did not at this time, or at any other time, seek to rely on the witnesses present that day, or their witness statements, in relation to the variation applications generally or the question of tree removal for the fence in particular. The Tribunal concluded the fence matter by asking if the parties had anything further they wished to raise - they did not. After the decision was reserved, the appellant could have applied to the tribunal for the witness statement of Mr Streatfield to be considered in relation to the fence matter, but no such application was made.
13. While the evidence of Mr Streatfield is relevant, there was no request by the appellant for that evidence to be considered on the fence matter despite multiple opportunities. Even allowing for a degree of confusion as a result of the two matters being heard no the same day, it cannot be concluded that the Tribunal failed to accord to procedural fairness to the appellant by refusing to permit Mr Streatfield to give evidence on the fence matter.[17]
14. The overarching submission of the appellant was that the failure to grant an adjournment of the hearing of the fence matter on 24 June 2016 was a denial of procedural fairness and a decision so unreasonable that no reasonable decision-maker could make it, following the principles set out by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18 (Li).
15. The unreasonable failure to grant an adjournment to allow a party to properly present their case amounts to a failure to provide a hearing, and is a failure to provide procedural fairness. However, the Appeal Tribunal does not consider that the circumstances under which the Tribunal proceeded to determine the fence matter on 24 June 2016 can be considered to be 'unreasonable' in the Li sense.
16. It is not necessary to set out the facts of Li, which are now well known, other than to note that Ms Li was refused an adjournment to obtain a further skills assessment, without which her application for a visa was necessarily doomed to fail. Critical points of difference with the decision under appeal include:
    • (a) Those proceedings were for review of an administrative decision and "there being no party to a review adverse to the applicant, no question of prejudice to a party other than the applicant can arise when the applicant asks the MRT to adjourn a review to enable additional information to be provided to the MRT."[18] By contrast, in the fence matter there was an opposing party, final orders had been made some two years earlier, and the respondents who were seeking a variation to implement the fence orders would have been prejudiced by the delay.
    • (b) There was every likelihood Ms Li's skills assessment would be provided and that it would be favourable, and the ultimate evidence demonstrated that this did in fact occur: "there was a proper basis for expecting a favourable outcome ... that was borne out by the event".[19] By contrast, in the fence matter the appellant sought to rely upon a quotation of PlaceAce Pty Ltd dated 5 June 2014. Even if it had been relevant to the fence matter, it cannot be said that there was any likelihood that the 5 June 2014 quote would have been provided if an adjournment had been granted. Such quote has still not been produced.
    • (c) In Li the decision of the MRT "was not informed by any consideration other than the "asserted sufficiency of the opportunities provided to [Ms Li] to put her case. ... There was, in the circumstances, including the already long history of the matter, an arbitrariness about the decision, which rendered it unreasonable"[20] and "Ultimately what appears absent in the [MRT's] decision in this instance is a consideration of the relative merits of the competing interests".[21] By contrast, in the fence matter the Tribunal carefully considered the confined scope of the hearing[22], the inconvenience of the hearing being adjourned[23], the appellant's failure to produce the quote of 5 June 2014 and lack of credibility in this respect[24], the respondent's entitlement to the benefit of the fence orders[25], the desirability of the appellant being present[26], and the appellant's state of health and whether that would prevent her from providing instructions on the fence matter.[27] The decision not to adjourn the fence matter was informed by multiple competing considerations.
    • (d) Both the nature of the proceedings and the impact of the lack of the adjournment in Li were very serious. Ms Li would be unable to be granted the requisite visa without the skills assessment. By contrast, the fence matter had a confined remit, and the difference between granting the adjournment or not sounded in the amount of under $500 in relation to construction of the fence, and the removal of one tree.
17. When one has regard to these points of difference, the Appeal Tribunal is not satisfied that the failure to adjourn the hearing of the fence matter was unreasonable in the Li sense.
18. Having considered the bases on which it is submitted that the Tribunal failed to afford the appellant procedural fairness, I am not satisfied that this ground of appeal is established.

The tribunal erred in law in ordering removal of trees 4 and 5 in the absence of evidence

1. The determination of 2014 was that the fence should be constructed on the boundary as surveyed, and should be built "to the point, nearest Mouat Street, of the front building line of the properties."[29] The determination was that any trees that impeded construction of such fence were to be, as necessary, trimmed, pruned or removed, subject to advice of the Conservator. The fence orders contemplated that if the Conservator refused permission to remove a tree or trees, the fence could be constructed in a different manner and with a retaining wall.
2. In hearing the fence matter the Tribunal visited the site, looked at the trees, considered the appellant's survey, the decision of the Conservator and other documents filed in the proceedings. Having done so, the Tribunal was satisfied that trees 1, 2 and 3 (the trees furthest from the street) were not on the boundary and did not require removal for construction of the fence.[30] Tree 4 was both on and over the boundary, the trunk having a diameter of 50cm and the centre of the trunk being 21cm from the boundary. According to the survey tree 5, which was located between the respondents' front building line and the appellant's front building line, had a diameter of 30cm and the centre of the trunk was located 22cm from the boundary. In other words, in 2014 this tree trunk was located 7cm from the boundary, and within the most forward building line. The remaining trees were located forward of the most forward building line, and thus beyond where the fence was to be constructed.
3. The Tribunal was satisfied that both tree 5 and tree 4 required removal for construction of a fence on the boundary extending to the front building line of the properties, as required by the determination. The Tribunal stated that the "tree removal contractor may go ahead with the removal of these trees in order that the fence may be built on the boundary."[31]
4. The appellant submitted that there was no evidence on the survey plan to distinguish between tree 5 and trees 6-9. It was submitted that there was no evidence that removal of either tree 4 or 5 was necessary, and that the Tribunal had erred in ordering that they be removed.
5. The Appeal Tribunal does not accept these submissions. The Tribunal had before it the survey, which clearly depicted the two properties' building lines, the location of the boundary, and the size and location of each tree trunk in May 2014. That information alone was sufficient to satisfy the Tribunal that tree 4 had to be removed to allow a fence to be constructed on the boundary, and that there would be a question as to the feasibility of retaining tree 5 given its close proximity. The Tribunal viewed the trees, and received updated quotes from the fencing contractor and arborist. With regard to this information it was open to the Tribunal to conclude that tree 5 was too close to the boundary to allow construction of the fence. The Appeal Tribunal is satisfied that there was ample evidence before the Tribunal on which it could reach the conclusion that it did in relation to both tree 4 and tree 5.

The tribunal erred in fact and in law in finding that it was necessary to remove any trees to rebuild the fence, particularly considering the quotation relied on (and the previous decisions) still maintained two options - removing the trees or not removing the trees - contrary to the evidence of the appellant's witnesses Deborah Strickland, Ted Streatfield and Stan Bevandra

1. The issues of the location and construction of the fence had been determined by the fence orders, and set out options dependent upon the Conservator's advice. Once the Conservator advised that the trees could be removed, the options of building a fence other than on the boundary, or in a non-continuous manner interrupted by trees, were not available. It was not within the scope of the variation proceedings to revisit those proposals, notwithstanding that the quotations may have contained those options. The Tribunal did not err in law in not considering the proposal to build the fence around the trees.
2. The Appeal Tribunal has noted above that there was evidence before the Tribunal on which it could conclude that the trees required removal for the fence to be built. In considering whether the Tribunal made an error in its finding, the Appeal Tribunal must give due regard to the original Tribunal's advantage in having seen the site, however the Appeal Tribunal is otherwise as well placed as the original Tribunal to draw inferences of fact from the established facts.[32] The Appeal Tribunal also has the opinion of Mr Streatfield, which was not before the Tribunal.
3. There can be no question that tree 4 requires removal for construction of the fence on the boundary, its trunk extended over the boundary when the survey was conducted in May 2014.
4. 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.
5. There is no evidence or agreement as to the minimum space required to construct a fence of the kind proposed. Mr Streatfield, 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 Streatfield 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.
6. 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.
7. 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 Tribunal erred in law in its making an order for payment of interest by the appellant

1. The Tribunal's powers for a fence repair determination under section 11 of the CB Act extend to ordering the amount that should be paid, by whom, how it should be paid and when it should be paid.[33] The CB Act does not expressly include a power to award interest on amounts which remain unpaid. Such interest is often referred to as 'post-judgment' interest.
2. The appellant submitted that order 13 of the final orders, which required payment of interest on outstanding amounts, was beyond the power of the Tribunal because it imposed interest compounding monthly, which is contrary to rule 1620 and Table 2.4 of Schedule 2 of the Court Procedures Rules 2006.
3. It might be argued that order 13 did no more than provide a method of calculating the amount to be paid under section 11(3) of the CB Act, and was not in the nature of post-judgment interest. This argument is not persuasive.
4. The order of the Tribunal was in the nature of an award of post-judgment interest. The issue is, did the Tribunal have power to make such an order?
5. Rule 1620 of the Court Procedure Rules provides for the automatic imposition and calculation of post-judgment interest:

_(1) Unless the court otherwise orders, interest is payable on the amount of a judgment debt (other than costs) that is unpaid at any time - _

• (a) if the court has awarded interest under rule 1120 (4) (a) (Default judgment - debt or liquidated demand) - at the rate awarded under that rule; or
• (b) in any other case - at the rate of interest applying at that time under schedule 2, part 2.2 (Interest after judgment).

Note Pt 6.2 (Applications in proceedings) applies to an application for an order otherwise ordering.

(2) However, unless the court otherwise orders, interest is not payable on the amount of the judgment debt if the amount is paid in full not later than 28 days after the day the judgment takes effect.

(3) Interest is payable on any amount awarded for costs, unless the court otherwise orders.

_(4) Unless the court otherwise orders, interest is payable on an amount awarded for costs that is unpaid at any time - _

• (a) at the rate of interest applying at that time under schedule 2, part 2.2 (Interest after judgment); and

• (b) from the day the costs were assessed or another date decided by the court.

(5) This rule does not authorise the giving of interest on interest payable under this rule.

1. In providing by order 13 for the interest on unpaid amounts to compound monthly, the Tribunal went beyond what is set out in rule 1620 and Schedule 2 of the Court Procedures Rules.[34] However, rule 1620 commences with the words "unless the court otherwise orders". Do the prefatory words of rule 1620 provide jurisdiction to a Court, and thus to the Tribunal, to make an order in relation to the rate or method of calculation of post-judgment interest? If not, the jurisdiction for such an order must be found elsewhere.
2. At common law there is no general power for a court to award post judgment interest. There is the power to make an order requiring payment of post-judgment interest at a commercial rate, when deciding some contractual matters. The words 'unless the Court orders otherwise' where appearing in rule 1620 may be no more than an acknowledgement of that limited circumstance.[35]
3. An examination of the history of rule 1620 sheds little light on whether the prefatory words amount to a grant of jurisdiction. In relation to the Supreme Court, rule 1620 was preceded by Order 42A rule 2 of the Supreme Court Rules 1937, which was itself preceded by section 70 of the Supreme Court Act 1933. Those provisions did not include a statutory power to vary the rate at which post-judgment interest would be payable. In relation to the Magistrates Court, rule 1620 was preceded by section 234 of the Magistrates Court (Civil Jurisdiction) Act 1982, which was worded similarly to rule 1620. The explanatory statements to the various iterations of the legislation, culminating in the current rule 1620, suggest no change to the previous state of affairs was contemplated by the move to uniform rules.
4. In this case, the order in relation to the method of calculation of post-judgment interest seems to have been made on the Tribunal's own motion, in an attempt to encourage the appellant to comply with the orders. The transcript of proceedings indicates that the Tribunal may have considered that the CB Act itself provided power to make the order.[36] It does not. The source of power for the making of that order was not specified by the Tribunal in its reasons for decision, and cannot be identified by the Appeal Tribunal. The decision in that respect must be set aside.

1. The Appeal Tribunal is not satisfied that the Tribunal failed to accord procedural fairness to the appellant in the conduct of the hearing on 24 June 2016. While fresh evidence was admitted on the hearing of the appeal, the vast bulk of that evidence was irrelevant to the limited inquiry being conducted at the 24 June 2016 hearing of the fence matter. The Appeal Tribunal is not satisfied that the Tribunal erred in law in failing to have regard to that evidence, and having had regard to such of that evidence as was relevant, the Appeal Tribunal does not consider that the Tribunal made incorrect findings of fact.
2. The Appeal Tribunal has found that the Tribunal was in error in awarding interest which was to compound monthly. The decision in that respect is set aside, and the decision is confirmed in all other respects.

[1] Note that in these orders the appellant is referred to as the 'respondent', and the respondents to this appeal were the 'applicants'

[2] This history is outlined in more detail in the variation decision at paragraphs 13-22 and in the nuisance decision Blackshaw & Evans v Campbell [2016] ACAT 108

[3] It transpired that the nuisance application was heard by a differently constituted tribunal on 16 September 2016 and a decision was made that the trees constituted a nuisance (the nuisance decision): Blackshaw & Evans v Campbell (No.2) [2016] ACAT 108. The tribunal ordered that all nine trees be removed. That decision was the subject of an appeal by the appellant, which was heard with this appeal. The nuisance decision was confirmed on appeal (Campbell v Blackshaw & Evans [2017] ACAT 64)

[4] Rule 21, ACT Civil and Administrative Tribunal Procedure Rules

[5] immediately following the hearing of the nuisance orders appeal

[8] Transcript of proceedings page 4 line 39,page 5 line37 ff, page 11 line 35 ff

[9] Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, Hamod v Suncorp Metway Insurance Ltd [2006] NSWCA 243 and Sydney Water Corporation v Caruso & Ors [2009] NSWCA 391

[10] The Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207, paragraph 14; B&T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and Anor [2013] ACTSC 219 at [11] & [12]

[12] Roberts v Morgan & Anor [2017] ACAT 70

[15] Despite references being made to a prior quotation of 5 June 2014, that quote was not proffered to the Tribunal on 24 June 2014, nor has any evidence of its existence been filed in these proceedings

[16] Transcript of proceedings page 53 line18 ff

[17] For completeness I note that, even if I had been satisfied that the circumstances amounted to a lack of procedural fairness, given the confined nature of that evidence it would still have been most efficient to proceed with the appeal by way of a review. Further, even if this ground of appeal was made out it would do no more than require the Appeal Tribunal to substitute its' own finding of fact which, as set out below, is that tree 5 requires removal

[21] Burnett FM quoted with approval by Gageler J

[28] The difference between the quote of Jeremy Fosters Fencing and the quote of PlaceAce Pty Ltd filed on the appeal

[32] Brunskill v Sovereign Marine & General Insurance co Ltd [1985] HCA 61; (1985) 62 ALR 53, see also the discussion in Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; (1970) 124 CLR 192

[34] Those rules and the jurisdiction provided to the Magistrates Court apply to the Tribunal in a civil dispute application, by virtue of section 22 of the ACAT Act

[35] See Volanne Pty Ltd v International Consulting and Business Management (ICBM) Pty Ltd (No 3) [2017] ACTCA 43 which touches upon but does not determine this issue