This is an appeal from an order of the Tribunal granting leave to the respondent to serve a notice under s 22 of the Dividing Fences Act 1991 (NSW) ("the DFA") demanding contribution towards the costs of construction of a new dividing fence from the co-owners (the appellants) of an adjacent parcel of land.
The appellants are co-owners of a parcel of land at Koorainghat, NSW. The respondent owns an adjacent parcel of land situated generally to the north of the appellants' property.
When the appeal was first instituted only the first appellant and the respondent were named as parties. On 13 November 2020 the Appeal Panel ordered that the second and third appellants be added as co-respondents to the appeal because they were proper parties to the appeal and because the terms of r 29 of the Civil and Administrative Tribunal Rules 2014 (NSW) also required they be added. As the second and third appellants are co-owners of the relevant land with the first appellant, and as they seek the same relief on this appeal as the first appellant, it is more appropriate that they be added as appellants rather than respondents and so we shall make that correction and refer to them as appellants hereafter.
[2]
Background
During the widely publicised bushfires which occurred in Australia in the summer of 2019/20 the fence between the appellants' and respondent's properties was destroyed.
After that occurred the respondent spoke to the second appellant. In relation to those conversations the Tribunal made the following findings (the reasons were delivered orally, what we set out below is copied from a transcript of those oral reasons):
"… there were conversations that occurred between Ms Susanne Devereux, one of the respondents (appellants), and Mr Burton, the applicant, in November and January, regarding the fences. The actual content of those conversations is subject to some controversy. But there was a conversation.
To my mind, that conversation, based on the evidence I've heard, does not in any objective sense indicate that there was any agreement reached by the parties with respect to the fencing. Or, in my view, that the conversation was substantiated ... Essentially, that there was broad agreement that something should be done. As to what should be done, it seems to me, was left to be decided subsequently."
Nothing was subsequently decided between the second appellant (or the appellants) and the respondent.
The DFA regulates the rights and obligations of adjoining owners of land in relation to dividing fences in NSW.
In general terms, the DFA says that adjoining landowners are liable to contribute to the costs of construction of a dividing fence of a standard not greater than the standard for a sufficient dividing fence.
The DFA provides a scheme for how contributions may be recovered in the absence of agreement between adjoining landowners.
In general terms the DFA requires a landowner, seeking a contribution from an adjoining landowner, to serve a notice under s 11 of the DFA on that adjoining landowner. That notice is required to set out certain information so that the adjoining owner may be properly informed of certain relevant matters. Section 11 says:
11 Notice to carry out fencing work
(1) An adjoining owner may require the other adjoining owner to contribute, under this Act, to the carrying out of fencing work by serving a notice in writing to that effect on the other owner.
(2) The notice is to specify the following:
(a) the boundary line on which the fencing work is proposed to be carried out or, if it is impracticable to carry out fencing work on the common boundary of the adjoining lands, the line on which it is proposed to carry out the work,
(b) the type of fencing work proposed to be carried out,
(c) the estimated cost of the fencing work.
(3) The owner serving the notice may propose that the cost of the fencing work is to be borne otherwise than in equal proportions. In such a case, the notice is to state the proposed proportions.
(4) The description of land in a notice need not particularly define the land if it allows no reasonable doubt as to what land is referred to in the notice.
(5) An adjoining owner is not liable to contribute to the cost of any fencing work in respect of a dividing fence:
(a) carried out before a notice under this section is served on the adjoining owner (unless section 9 applies or the notice is served in accordance with section 22), or
(b) carried out after the service of the notice on the adjoining owner and before agreement is reached by the adjoining owners concerning the fencing work (including the contributions to be made in respect of the work) or before the matter has been determined by the Local Court or the Civil and Administrative Tribunal.
Regrettably, the respondent did not serve such a notice. Instead, he unilaterally engaged contractors who constructed a boundary fence.
The DFA prohibits recovery of a contribution to dividing fence costs where fences are constructed unilaterally and before a s 11 notice is served except in the two circumstances referred to in s 11(5)(a) and (b), namely: urgency under s 9; or leave is granted in accordance with s 22.
Before the Tribunal the respondent sought to bring his claim within s 9. Section 9 allows for recovery from an adjoining landowner of 50% of the cost of "urgent fencing work" in the absence of prior service of a s 11 notice when a dividing fence is damaged or destroyed and the circumstances require urgent fencing work.
That s 9 claim that was rejected by the Tribunal and there is no appeal from the rejection of that claim.
The second exception to the prohibition in s 11(5) from recovery of a contribution in the absence of prior service of a s 11 notice is the granting of leave under s 22. Section 22 says:
22 Time for service of notices - special provision
(1) The Local Court or the Civil and Administrative Tribunal may grant leave to serve a notice demanding contribution under this Act on an adjoining owner from whom contribution is sought up to 12 months after the fencing work concerned has been carried out.
(2) Leave may be granted only if:
(a) the Court or the Tribunal is satisfied that the owner seeking to serve notice has mistakenly taken action in respect of the dividing fence under some other Act, or
(b) the Court or the Tribunal considers it to be just or equitable in the circumstances for leave to be granted.
Section 22 allows for leave in two circumstances: the mistaken taking of action (constructing the fence) under some other Act or if a court or the Tribunal considers it to be just or equitable in the circumstances for leave to be granted.
The respondent could not identify any other Act under which he had mistakenly constructed the fence and thus he did not fall within that exception.
Therefore, what was left for the Tribunal to decide in this case was whether it was just or equitable in the circumstances for leave to be granted to the respondent to serve a s 11 notice after the fencing work had been done and thus avoid the s 11(5) prohibition from recovery of a portion of the cost of the fence from the appellants.
In relation to that issue, and immediately after making the findings it did that we have quoted at [10] above, the Tribunal said:
"But given the fact that conversation did occur, given that there was ... All the fences were devastated by that fire, it seems to me, weighing the interest of both parties, that it would be just and equitable that Mr Burton be given leave to serve a notice that complies with the Section 11... That is Subsection 11, Subsection 2 of the Act, within 14 days from the date of these orders.
If then, there is still a dispute with respect to the fence that was erected and the cost of that, then that dispute can be [unclear] subsequently. So, my orders are, then, that, there will be one order, pursuant to Section 22, Subsection 28 of the Act, that Mr Burton be granted leave to serve that notice in accordance with Section 11.2 within 14 days from today's date."
The appellants appeal from those orders.
[3]
The Relevant Legal Principles Applicable to this Appeal
The power to grant leave under s 22(2)(b) of the DFA is a discretionary power.
The law says that to successfully appeal from an order made in relation to a discretionary power (assuming the precondition of adequate reasons is met) the appellants would need to establish one or more of the errors identified in House v R (1936) 55 CLR 499; [1936] HCA 40. That is, the appellants bear the burden on appeal of establishing that the Tribunal:
1. made an error of legal principle;
2. made a material error of fact;
3. took into account some irrelevant matter;
4. failed to take into account or gave insufficient weight to, some relevant matter;
5. or arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.
[4]
The Appeal
Neither the appellants nor the respondent are legally trained and so, unsurprisingly and with no disrespect to them, their submissions traversed matters beyond the five matters we have outlined above and were not relevant to this appeal which solely concerns whether the Tribunal made a relevant error in its decision to grant leave.
We have also examined the material ourselves to see whether the Tribunal made any House v R errors that had not been identified by the appellants. The result of considering the appellants' submissions and our own examination of the material is that the Tribunal did not, in our opinion, make any error.
The appellants questioned whether the Tribunal's reasons were adequate. In our opinion they were adequate in the circumstances.
In New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 the President, with whom Ward JA (as her Honour then was) and McCallum JA, said a number of things about the standard of reasons required of the Tribunal. His Honour said:
[71] That having been said, even in the less formal setting of a tribunal which has significant powers the exercise of which is capable of affecting the lives of citizens in profound ways, there are certain minimum characteristics that a Tribunal's reasons must possess. These are really supplied, in relation to the Tribunal, by s 62(3) of the CAT Act which, as noted at [52] above, requires there to be set out in reasons (when requested by a party):
(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b) the Tribunal's understanding of the applicable law, and
(c) the reasoning processes that lead the Tribunal to the conclusions it made.
[72] Whilst s 62(3) provides a useful starting point, it still leaves for consideration the question as to the quality and detail of the reasoning process that must be exposed.
[73] In this context, in Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462 at 477; [1995] QCA 187, Fitzgerald P said of the Queensland Retail Shop Leases Tribunal, adapting the language of Samuels JA in the unreported decision of this Court in Strbak v Newton (Court of Appeal (NSW), Samuels JA, 18 July 1989, unrep) (Strbak), cited in Xuereb v Viola (1988) 18 NSWLR 453 at 469, that, while such a tribunal:
"might not be required to 'submit the material before [it] to the most meticulous analysis and carry into [the reasons for its decisions] a detailed exposition of every aspect of the evidence and the arguments ...' or '... incorporate an extended intellectual dissertation upon the chain of reasoning ...', at least 'a basic explanation of the fundamental reasons which led the [Tribunal] to [its] conclusion ...' is necessary".
It should be noted that Samuels JA in Strbak had been describing the duty of a District Court judge to give reasons as opposed to that of a tribunal member.
[74] In Tatmar at 386, Mahoney JA (as he then was) observed in the context of the obligation to give reasons for a discretionary judgment that it was not necessary for a judge:
'who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemi[s]e, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard: see O'Hara v Evans (Court of Appeal, 23rd September, 1976, unreported; Colacicco v Colacicco (Court of Appeal, 15th March, 1977, unreported). ... Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear: see Selvanayagam v University of the West Indies [1983] 1 WLR 585, at 587, 588; [1983] 1 All ER 824 at 826.
But, subject to matters such as these, the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need to elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it.'
[75] To like effect, in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 at [46], Basten JA said:
'Generally, the concept of 'reasons' requires an explanation connecting any findings of fact with the ultimate decision. Where the legal test to be applied involves an evaluative judgment, it may well not be practicable to provide a detailed articulation as to how specified (and conflicting) factors have been weighed in the balance; the scope of the obligation must recognise that constraint. (A different question arises if mandatory considerations have not been identified.)' (emphasis added)
[76] What constitutes adequate reasoning on the part of a tribunal is also informed, in my opinion, by statements from well-known administrative law decisions relating to the limits of judicial review and the need for practical as well as principled restraint in that context: Pozzolanic at 287.
[77] These principles include the following:
(i) 'Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole": Re Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; 77 ALJR 1165 per Gleeson CJ at [14] (Ex parte Applicant);
(ii) the court should not read passages from the reasons for decision in isolation from others to which they may be related: Re Maria Politis v Commissioner of Taxation [1988] FCA 739 at [14]; 20 ATR 108 at 111;
(iii) the reasons must be read fairly and as a whole: Ex parte Applicant at [147] per Kirby J; Wu Shan Liang at 291; Bisley at 251;
(iv) the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; [1993] FCA 456 (Pozzolanic) at 287; Wu Shan Liang at 272, 291;
(v) there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips: Pozzolanic at 287, Wu Shu Liang at 272 and 291."
We have highlighted the parts of his Honours judgment which we regard as relevant to this appeal in bold text above.
In short, in our opinion the reasons of the Tribunal were adequate in the circumstances. This was an evaluative judgment by the Tribunal in which it was not practical for the Tribunal to provide a detailed articulation as to how the conflicting factors (both for and against the granting of leave) were weighed in the balance before the Tribunal arrived at its decision.
The Tribunal did not need to submit the arguments and material placed before it to the most meticulous analysis, nor was it required to provide a detailed exposition of every aspect of the evidence and the arguments, nor incorporate an extended intellectual dissertation upon the chain of reasoning which led to its decision to grant leave to the respondent.
In our opinion the basis of the Tribunal's decision was made apparent, albeit in brief terms. The Tribunal found that there had been conversations between the second appellant and the respondent, and that in those conversations there was broad agreement that something should be done. There was no submission that the Tribunal made any material error of fact in relation to those findings, nor is any apparent to us.
The Tribunal also considered the undisputed fact that the previous boundary fence had been destroyed.
Taking into account those factors, and the competing interests of the parties, the Tribunal decided that it was just and equitable to grant leave to the respondent to serve a notice under s 22.
The appellants submitted otherwise of course, submitting that the result was that the respondent could subvert the law, and this was a "material fact" which the Tribunal had failed to take into consideration.
That submission is incorrect because Parliament decided that there should be two exceptions to the prohibition in s 11(5), one of which was applied by the Tribunal. It cannot be said that the respondent subverted the law when the law provided the very exception applied by the Tribunal to the respondent.
That is not to understate the understandable chagrin of the appellants to have discovered a new boundary fence constructed on their boundary without ever having been consulted by the respondent as to the method of construction, the materials to be used and other matters referred to in s 11, and in circumstances where there was no urgency for that work to have been done. The actions of the respondent in unilaterally constructing this fence in the absence of a s 11 notice do not reflect well upon him.
Nevertheless, there is a flip side to that coin. And that is that if the Tribunal had refused to grant the leave it did, the appellants would be in the position of having the benefit of a new dividing fence (made necessary by the destruction of the old fence) without making any financial contribution to the cost of construction of that new fence.
This was obviously in the Tribunal's mind as the Tribunal referred to the conversations between the second appellant and the respondent in which, the Tribunal found, broad agreement had been reached that something should be done about a new dividing fence. Of course, the necessary implication is both parties would contribute to the something that should be done, not that the respondent would bear 100% of the cost of a new dividing fence.
The result of the granting of leave is not, as the Tribunal was at pains to point out, that the respondent would simply receive from the appellants 50% of what he says he spent. The Tribunal expressly made clear that (we have made some minor spelling and grammatical changes):
"… the evidence doesn't, to my mind, clearly establish what that cost was. So, irrespective of the notice issue, I do not think, based upon the evidence, I could require the respondents to contribute towards the cost of fencing.
And:
"If then, there is still a dispute with respect to the fence that was erected and the cost of that, then that dispute can be [unclear] subsequently."
What that means, in practical terms, is that if the respondent wishes to receive a contribution to the cost of the new dividing fence from the appellants, then he will need to produce and serve upon the appellants better evidence of the cost, the reasonableness of the cost and the reasonableness of the construction materials, method and style of fence than he had provided to the Tribunal.
Further, the appellants are only required to contribute to the cost of a fence which is of a "standard not greater than the standard for a sufficient dividing fence" per the terms of s 6 of the DFA. What that means is that if the standard of the fence constructed by the respondent was of a higher standard that a "sufficient dividing fence", then the respondent will not be able to recover any contribution for the difference between the costs of that fence and what the Tribunal judges to be the cost of a "sufficient dividing fence".
The appellants questioned whether the Tribunal had jurisdiction to make an order under s 22 in the absence of any agreement with them and the absence of any extenuating circumstances such as urgency. The answer is that Parliament gave the Tribunal that jurisdiction in s 11(5)(a) and s 22 if the Tribunal regarded it as just or equitable to make the order. In this case the Tribunal came to that conclusion because the old fence had been destroyed and the second appellant had agreed with the respondent that something should be done about a new fence.
The appellants made a number of other submissions about the importance of the prohibition found in s 11(5). Those submissions may be accepted. That is, the prohibition is important. But Parliament also provided for exceptions to the prohibition, and it was one of those exceptions which the Tribunal said should apply given the old fence had been destroyed and the second appellant had agreed with the respondent that something should be done about a new fence.
The appellants also submitted that the decision was not fair and equitable and was against the weight of evidence. The appellants would require leave to appeal on those grounds [see s 80(2)(b) and cl 12 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW)]. To obtain that leave they would need to demonstrate the matters more fully described in Collins v Urban [2014] NSWCATAP 17, and the appellants have failed to do so.
The appellants claimed that the first appellant was cut-off in her submissions to the Tribunal, and that the third appellant was also cut-off. We have listened to the sound recording of the hearing before the Tribunal and neither appellant was cut-off by the Tribunal.
The appellants submitted that there was no urgent need for the respondent to construct the new fence. That submission is correct, and the Tribunal found in their favour on that point. But the lack of urgency was but one of the many factors the Tribunal took into account and was not a determinative factor.
The appellants made a number of further submissions, but none of them address any ground of appeal which could be raised in a case such as the present, and so we shall not describe them further.
The end result of the appeal is that we were not persuaded by the appellants that the Tribunal fell into any relevant legal error in its decision, nor could we see any error on our own examination of the materials. Accordingly, the appeal should be dismissed.
[5]
Orders
We make the following orders:
1. Appeal dismissed.
[6]
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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Decision last updated: 26 April 2021