Draper v Gibbs

[2014] NSWCATAP 54

NCAT Appeal Panel|2014-09-23

View original source

At a glance

Source facts

Court

NCAT Appeal Panel

Decision date

2014-09-23

Source

Original judgment source is linked above.

Judgment (14 paragraphs)

[1]

Introduction 1This is an application for leave to appeal and an appeal from a decision of the Consumer and Commercial Division of the Tribunal. 2Trevor Draper and Sharon Draper are owners of land at [XXXX], Caringbah (the Draper Property). Ian Gibbs is the owner of land at [XXXX], Caringbah (the Gibbs Property). The Draper Property and the Gibbs Property adjoin and share a common boundary. There is a swimming pool on the Gibbs Property. Part of the dividing fence on the common boundary is also a child proof barrier for the swimming pool. 3Trevor and Sharon Draper are the appellants. Ian Gibbs is the respondent. For convenience, we will refer to the parties as Mr Gibbs and the Drapers. 4The matter concerned an application by Mr Gibbs pursuant to the Dividing Fences Act, 1991, for an Order for Fencing Work as specified in a notice served by Mr Gibbs on the Drapers under s 11 of that Act (the Notice). The contents of the Notice were as follows: (1)The fencing work to be carried out on the common boundary of the adjoining lands (addresses listed)....; (2)The fencing work consists of approximately 38m of 1.8m (height) Colorbond (Colour - Riversand). The fencing will start at the western boundary (adjoining Milton's eastern fence) of the common line and extend for 38m in an easterly direction along that boundary. (3)The estimated cost of the fencing work of $2550 (+GST) is to be born (sic) in equal proportions of $1275.00 (+GST). 5 The Drapers did not agree to the proposed fencing work. 6On 22 February 2013, Mr Gibbs filed an application to the Local Land Board for an order for the fencing work as specified in the Notice. 7The application was part heard by the Local Land Board on 5 December 2013. Local Land Boards were abolished by amendments to the Crown Lands Act 1989 on 31 December 2013. 8The Tribunal commenced on 1 January 2014 and the jurisdiction to hear and determine applications under the Dividing Fences Act 1991 thereafter was given to the Tribunal (see Schedule 1, s 7(2) of the (CATA). The Tribunal then continued to hear and determine the application.

The decision of the Tribunal below 9The Tribunal set out the evidence before it from each party at [16] -[17] of its reasons. 10At [18]- [24] of its reasons it set out the relevant provisions of the Dividing Fences Act, including s 6 of that Act under which the Tribunal is to make a determination as to whether there is a sufficient dividing fence. The Tribunal held that it is only after there is a determination by it that there is no sufficient dividing fence that the jurisdiction granted by the Act to make fencing orders is triggered: Alwiah v Watts & Anor [2004] NSWSC 948; Brown v Doyle [2012] NSWSC 1269; Larney v Johannson [2012] NSWSC 1297 (affirmed on appeal Larney v Johannson [2013] NSWCA 409 but on different grounds). There is no appeal from the finding of the Tribunal that the existing dividing fence was not a sufficient dividing fence. 11The Tribunal held that, having decided there was no sufficient dividing fence, it was open to it to determine the standard of a sufficient dividing fence for which adjoining land owners should contribute in accordance with the Act. 12The Tribunal also set out relevant provisions of the Swimming Pools Act 1992. This was relevant because 18 meters of the dividing fence on the boundary between the Draper Property and the Gibbs Property was also to be a swimming pool child-resistant barrier for a pool on the Gibbs Property. There is no dispute about that; rather the dispute was as to the nature of materials to be used to construct the whole of the dividing fence, including that part which is to constitute the child-resistant barrier within the meaning of the Swimming Pools Act. 13The provisions of the Act referred to by the Tribunal were s 32 and s 33 of that Act. They relevantly state: 32 Relationship with other Acts (1) In the event of an inconsistency between: (a) the provisions of this Act, and (b) the provisions of any other Act or law, or of any agreement, covenant or instrument, the provisions of this Act are to prevail, but to the extent only of the inconsistency. 33 How are the expenses of constructing dividing fences to be apportioned? (1) The expenses of constructing, altering, repairing, replacing or maintaining a dividing fence are, to the extent to which they are attributable to work done for the purpose of complying with the requirements of this Act in respect of a swimming pool, to be borne: (a) by the owner of the premises on which the swimming pool is situated, or (b) if swimming pools are situated on more than one of the premises bounded by the dividing fence-by the owners of each of those premises in appropriate proportions. (2) This section prevails over any provision of the Dividing Fences Act 1991 to the contrary. 14The Tribunal correctly held that the effect of these provisions was that the owner of the premises on which the swimming pool is situated, is responsible for the whole of the cost of a dividing fence that serves also as a child-resistant barrier in order to comply with the Swimming Pools Act. 15With respect to the length of the dividing fence the subject of the application, the Tribunal noted that the Notice referred to in [4] above, was only in respect of the replacement of 38 metres of dividing fence. However, following a view of the properties by the Tribunal, it appeared that the length of the whole of the common boundary on which the dividing fence was situated was in fact 50 metres. The Tribunal thereafter used 50 metres as the relevant length of the dividing fence the subject of the application. There is no appeal from that aspect of the Tribunal's reasons. Indeed, as can be seen from the evidence the Drapers put before the Tribunal (at [17]), the Drapers provided numerous quotes for fencing work on the basis of a 1.8 metres high, 50 metres long dividing fence. 16The Tribunal also referred to s 4 of the Dividing Fences Act. This section sets out the requirements for the Tribunal to make a determination of what is a sufficient dividing fence. That section provides: 4 Determination as to "sufficient dividing fence" In any proceedings under this Act, the Local Court or the Civil and Administrative Tribunal is to consider all the circumstances of the case when determining the standard for a sufficient dividing fence for the purposes of this Act, including the following: (a) the existing dividing fence (if any), (b) the purposes for which the adjoining lands are used or intended to be used, (c) the privacy or other concerns of the adjoining land owners, (d) the kind of dividing fence usual in the locality, (e) any policy or code relating to dividing fences adopted by the council of the local government area in which the adjoining lands are situated, (f) any relevant environmental planning instrument relating to the adjoining lands or to the locality in which they are situated, (g) in the case of a dividing fence affecting land the subject of a lease under the Western Lands Act 1901, any order in force under section 18A of that Act. 17The Tribunal considered the matters required and determined that: (1)the existing dividing fence was a hardwood timber fence with posts and palings which was in poor condition. As noted, it found that the existing dividing fence was not a sufficient dividing fence; (2)the adjoining lands are used for residential purposes and part of Mr Gibbs' land was used for swimming pool purposes. Further, the types of fence proposed by each party (a Colorbond fence by Mr Gibbs and a treated pine paling fence by the Drapers) were each consistent with a usual dividing fence in residential areas. It was common ground that whatever the nature of the dividing fence, it is to be 1.8 metres high; (3)as to privacy, the 1.8 metres high fence (of whatever construction) would address a higher level of privacy than currently existed. As to the other concerns of the parties, the Tribunal noted that it was the type of material to be used to construct the dividing fence that caused the greatest concern to the parties. It set out each party's contentions and concerns as to why the fence should be constructed using their preferred material. As we have noted, Mr Gibbs proposed a Colorbond fence and the Drapers proposed a treated pine paling fence; (4)In relation to the kind of dividing fence in the locality, the Tribunal considered Mr Gibbs' contention that 20 of the 28 properties within 100m of his land had Colorbond fences. It also considered the Drapers having identified by reference to an aerial photograph they tendered as exhibit A 1, that there were approximately 20 timber dividing and rear fences for 15 adjoining properties. The Tribunal found that the evidence of each party on this issue was selective and that they had reached different conclusions on similar facts. It therefore placed most weight on the results of a view it conducted at the properties. As a result of that view it found that the locality had a mix of fencing of both Colorbond and timber and, as such, there was no clear indicator of a single type of fencing used in the locality and one was not more predominant than the other; (5)The Tribunal found there was no evidence before it as to any policy or code relating to dividing fences which had been adopted by the local authority; and (6)The tribunal found that there was no evidence before it as to any relevant planning instrument relating to the adjoining lands. 18Having regard to the matters referred to above and all of the circumstances of the case, including the fact that part of the dividing fence was also required as a child-resistant barrier to Mr Gibbs' swimming pool, the Tribunal concluded that a Colorbond fence was a sufficient dividing fence for the purposes of both the requirements it was to fulfil. That is, the Colorbond fence was a sufficient dividing fence and also an appropriate fence to be used for the 18 metres of the common boundary which necessitated a child-resistant barrier under the Swimming Pools Act. Important to the Tribunal's conclusion in this regard was that a fence used as a dividing fence and a swimming pool barrier had to incorporate the requirements of both uses. It found as follows: [56]...If a treated pine paling fence is used it will need to be modified by [Mr Gibbs] in order to comply with his obligations under the Swimming Pools Act. It is for [Mr Gibbs] to ensure compliance with that Act. No liability falls on [the Drapers] in that regard. [57] The Tribunal is satisfied that if [Mr Gibbs] is obliged to provide a childproof barrier in compliance with the Swimming Pools Act then the material used and the method of construction is the responsibility of the owner of the land in which the swimming pool is located, that is, [Mr Gibbs]. Neither the Swimming Pools Act nor the Dividing Fences Act contemplates otherwise. [58] The Tribunal finds that it is for [Mr Gibbs] to choose how he complies with his swimming pool obligations as he is solely responsible for the cost of that fence and liable to comply with the law. 19Having noted the different types of materials the parties submitted ought to be used, and their intractable positions, the Tribunal found: [61] Having found that the length of fence forming the swimming pool child proof barrier is to be at [Mr Gibb's] choice for which he has chosen Colorbond sheet metal, the options for orders open to the Tribunal in relation to the 32 metres for the remainder of the fence is a treated pine paling fence or a Colorbond fence. If a timber fence this would result in the dividing fence consisting of part timber and part Colorbond. Alternatively, for consistency of appearance, the whole dividing fence the subject of the application could be ordered to be Colorbond. The result will depend on what type of fence the Tribunal finds is a sufficient dividing fence for the purposes of the Act. [62] It should not be forgotten, the preamble to the Dividing Fences Act states that it is "An Act to provide for the apportionment of the cost of dividing fences;" the Act is not a panacea for all disputes between neighbours. The general principle of the Act is clearly set out in s 6. 20Noting it was Mr Gibbs who bore the onus of satisfying the Tribunal that he is entitled to the orders he sought, the Tribunal found that, having found that there was no sufficient dividing fence, it could make any of the orders contemplated by s 14 of the Dividing Fences Act. It determined : [68] A Colorbond sheet metal fence 1.8 metres high is a type not unusual in the locality, it is of a type that is used in residential areas, it addresses the concerns of both parties as to privacy, that part of it that forms the swimming pool fence is the responsibility of [Mr Gibbs] and if the concerns of [the Drapers] come to fruition it will be for [Mr Gibbs] to maintain and repair that part of the fence solely. There is no evidence of it offending any policy or code of the council for the local government area or relevant environmental instrument. [69] In all of the circumstances, the Tribunal finds that the applicant has satisfied the onus on him that a Colorbonded sheet metal dividing fence is ta sufficient dividing fence for the purposes of this application. 21The Tribunal made the following orders: (1)The existing dividing fence between the applicant's land and the respondent's land is to be demolished and removed and the fence line cleared sufficiently to allow the fencing work the subject of these orders. (2)A new Colorbond sheet metal dividing fence 1.8 metres high is to be erected on the common boundary line between the applicant's and respondent's adjoining lands. (3)The fencing work is to be carried out by David Evans & Son in accordance with their quote of 16 October 2013 for a Colorbond fence. (4)The applicant is responsible for the cost of the fencing work including the cost of the fencing work for the approximately 18 metres of the dividing fence that forms his swimming pool child proof safety barrier. (5)The respondent's contribution to the cost of the fencing work will be 50% of the cost of 32 metres of fencing work as quoted by David Evans & Son ("Fencing Contractor") regardless of the final cost, that is $1,371.52. (6)The applicant must pay the whole of the cost of the fencing work to the Fencing Contractor and will be the only party to give instructions to the Fencing Contractor in relation to the carrying out of the fencing work. (7)Subject to the availability of the Fencing Contractor, the fencing work is to be completed within two (2) months of the date of these orders. (8)The fencing work is to be carried out in a good and workmanlike manner using new materials. (9)The Fencing Contractor is to be paid on the day the fencing work is completed. (10)The respondents are to pay to the applicant their contribution, as ordered on these orders, within seven (7) days of completion of the fencing work, without deduction or allowance.

[3]

The Notice of Appeal 22By Notice of Appeal dated 3 June 2014 the Drapers seek leave to appeal from certain parts of the Tribunal's decision and to appeal other parts of the decision on the basis that they involve questions of law. 23Before discussing whether leave ought be granted, it is necessary to set out the grounds of appeal as set out in the Notice of Appeal. 24The Notice of Appeal challenges orders 2, 3 and 5 of the Tribunal as set out at 22 above. 25The grounds of appeal are stated below. There was a numbering error in the Notice of Appeal in that there was no ground 3, but a ground 4 immediately after ground 2. There are 5 grounds of appeal listed in the Notice of Appeal. They are as follows: (1)Point of law that the Applicant, Mr Gibbs, can choose the fence material based on the decision that because the Applicant must comply with the Swimming Pool Act (sic) he therefore chooses the type of dividing fence (2)Point of law that no law requires a treated pine fence to be modified to satisfy the Swimming Pool Act (sic) & Regulations (3)The weight of evidence regarding the type fencing that is common in the locality (4)No inconsistency between s 33(2) of the Swimming Pool Act (sic) and the Dividing Fences Act in this matter. (5)Denial of natural justice - how the Tribunal decided that the fence should be Colorbond rather than timber i.e. that the applicant has the choice of fencing material." 26It can be seen from these grounds that grounds 1, 2 and 4 seek to raise questions of law. In our opinion, they do raise questions of law. As such, no leave is required. 27As discussed below, ground 3 does not raise a question of law and requires leave to appeal. 28In respect of ground 5 as it is expressed in the Notice of Appeal, although it states that the issue is one of natural justice, a closer examination shows it in fact relates to whether, on the proper construction of the Dividing Fences Act and the Swimming Pools Act, Mr Gibbs could choose the materials for which that part of the dividing fence which was also to be used as a child safety barrier for his pool. This is a question of law and does not require leave. 29There are, however, other matters sought to be agitated by the Drapers in the material they have served which go to procedural fairness. Leave is required before such matters can be the subject of an appeal. 30The orders sought by the Drapers in the appeal are stated in the Notice of Appeal to be: (1)A new treated pine dividing fence 1.8m high is to be erected on the common boundary line between the Applicant's and Respondent's adjoining land (new quotes req'd). Failing this A Colorbond fence 1.8m high is to be erected for the 18m of dividing fence that forms part of the swimming pool barrier with the remaining 32m to be erected in treated pine 1.8m high (new quotes req'd) Failing this A grey coloured Colorbond fence is preferable to a light colour. 31As the decision was a final decision of the Consumer and Commercial Division, in answer to question 12B on the Notice of Appeal, it was indicated that leave to appeal was sought. 32Under the heading in the Notice of Appeal " i Decision not fair and equitable" (being one of the bases which may have led to a substantial miscarriage of justice so as to enliven leave to appeal) the Drapers stated: "Refer attached reasons for various points of law". We will return to the attached reasons below but note, of course, that if the appeal is made on questions of law, no leave is required. 33Under the heading in the Notice of Appeal "Decision of the Tribunal against the weight of evidence" (being another basis on which leave may be granted) and the sub-heading "What evidence did you give at the hearing? What documents did you show the Tribunal it is stated: " Refer attached details regarding type of dividing fence" 34Under the heading in the Notice of Appeal: What decision do you think the Tribunal should have made, given the evidence/documents presented at the original hearing? it is stated: "The Tribunal Should have ordered that the existing 50 m of insufficient dividing fence be replaced with 50m of 1.8m high treated pine dividing fence" (emphasis added). We have emphasised the words "insufficient dividing fence" as it indicates that there is no appeal from the findings of the Tribunal firstly, that the length of the dividing fence the subject of the application was 50 metres and, secondly, that the existing 50 metres of dividing fence was not a sufficient dividing fence. 35A stay was sought of orders 2 and 3 of the Tribunal. The stay was refused on 17 June 2014 by the Appeal Panel constituted by Principal Member Harrowell. The reasons for the refusal were that as part of the dividing fence in this case was also a child-resistant barrier as required by the Swimming Pools Act and the Tribunal had found that the existing fence was not a sufficient dividing fence, in the absence of suitable evidence from the appellants that there was no danger arising from an unfenced swimming pool, it was not appropriate to grant a stay. 36As we have indicated, the Notice of Appeal has attached to it 6 typed pages setting out the reasons why the Drapers assert that leave to appeal, if required, should be granted. We will consider the matters raised relevant to each ground of appeal. 37Finally, before we consider the merits of the application for leave to appeal, and the appeal in so far as leave is not required, we note that on 20 June 2014 the Tribunal received a letter from the Drapers headed "Significant New Evidence". The letter in effect seeks to add a further ground of appeal (for which leave is required) to rely on new evidence, not reasonably available at the time of the hearing. That new evidence was said to be that Mr Gibbs had started to erect in excess of 18 metres of internal metal swimming pool fence adjacent to the existing paling dividing fence. We will treat this letter, to which Mr Gibbs has responded by letter dated 8 July 2014 as a further ground of appeal, ground 6. It is important to return to this evidence later in these reasons.

[4]

Directions made by and material before the Appeal Panel 38On 17 June 2014 the Appeal Panel made the following directions: (2)On or before 30 June 2014 the appellant is to file and serve: (a)all evidence in support of any application for leave to appeal; (b)a copy of the audio sound recording of the hearing before the Tribunal on 6 May 2014 and a typed copy of any evidence in that sound recording on which the appellants seek to rely; and (c)submissions, including in relation to: (i)why leave to appeal should be granted and why an oral hearing is necessary on the grant of leave; and (ii)why any oral hearing of the appeal (if leave is granted) should not be dispensed with pursuant to section 50(2) of the Civil and Administrative Tribunal Act 2013. (3)On or before 14 July 2014 the respondents are to file and serve any evidence and submissions in response to the appellant's submissions and evidence required by orders 2 above, including a typed copy of any evidence in that sound recording on which the respondent sees to rely; (4)On or before 21 July the appellants are to file and serve any evidence and submissions in reply. (5)The respondent is otherwise to file a Reply as required by the Rules. (6)The matter will be referred to the appeal panel after the for submissions has closed to determine whether a hearing is to be dispensed with and the matter determined on the papers. 39On 25 June 2014 the time for compliance with these directions was extended. 40The Appeal panel has the following material before it from the Drapers: (1)The Notice of Appeal and 6 page typed document attached to it explaining why leave ought to be granted; (2)A letter dated 14 July 2014 enclosing: (a)A document called "Appeal Panel File No. AP 14/0225 Trevor & Sharon Draper v Ian Gibbs Exhibit 1" (this document is really just submissions and we will call it the Appeal Submissions); (b)A document called "References to Transcript of Hearing made by Trevor & Sharon Draper"; (c)A document called "Comments on Mr Gibbs Reply to Appeal" (3)A copy of the audio sound recording of the hearing before the Tribunal. (4)A letter dated 20 June 2014 referring to "significant new evidence", namely that Mr Gibbs had started to construct a Colorbond fence as a swimming pool fence adjacent to the dividing fence. (5)A letter dated 1 August 2014 clarifying some matters in the abovementioned material and attaching a further two pages of submissions in reply. 41In the letter referred to in 2. Above, the Drapers indicated that they had no objection to the appeal being dealt with on the papers, that is, without an oral hearing. They also said that: "leave to appeal should be granted on the grounds we have given in our submissions. Please refer our Notice of Appeal and Evidence". 42The Appeal Panel has before it the following material from Mr Gibbs: (1)Reply to Appeal with a 1 page typed attachment; (2)A letter dated 8 July 2014 and received by the Tribunal on 11 July 2014 titled," Re Mr & Mrs Draper's Significant New Evidence " in response to the Draper's letter dated 20 June 2014. 43In his Reply to the Appeal, Mr Gibbs ticked the boxes indicating that he had no objection to the application for leave and the appeal each being heard on the papers. In the attachment to his Reply, Mr Gibbs, as well as making some submissions in response to the Drapers' submissions said: "I do not see any new information in Mr and Mrs Draper's appeal, it has all been contained in their previous documents/submissions and therefore there is little point in arguing the detail again".

[6]

Principles applicable when the in considering leave to appeal from a decision of the Consumer and Commercial Division 46As the decision was a final decision of the Consumer and Commercial Division, unless the appeal is on a question of law, leave is required to appeal (see s 80(2) CATA). When considering applications for leave to appeal from such decisions, the Appeal Panel is required to be satisfied of the matters set out in cl 12 of schedule 4 of the Act. That clause relevantly provides: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under s 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied that the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable; (b) the decision of the Tribunal under appeal was against the weight of evidence; or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time of the proceedings under appeal were being dealt with). 47The principles to be applied by the Appeal Panel in considering an application for leave to appeal from a decision of the Consumer and Commercial Division were discussed in Collins v Urban [2014] NSWCATAP 17 at [65]-[84]. After considering the relevant authorities, the Appeal Panel stated: 76 Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 77 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: (1) If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. (2) The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. 78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 79 In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] ff concerning the corresponding provisions of s 68 of the CTTT Act and especially at [46] and [55]. 48Of course, if the Appeal Panel is satisfied that an appellant from a decision of the Consumer and Commercial Division may have suffered a substantial miscarriage of justice on one of the grounds identified in cl 12 (1) (a), (b) or (c), then it may grant leave under s 80(2) of CATA. It retains a discretion in this regard. In exercising that discretion, the principles applicable were summarised by the Appeal Panel in Collins v Urban at [84]. 49In considering the grounds of appeal which require leave, we will apply the principles referred to in [48] and [49] above.

[7]

Ground 3: The decision was against the weight of the evidence as to the type of fencing used in the locality 50The Drapers submit that the conclusion of the Tribunal that it was not satisfied that one type of fence, that is a Colorbond fence as opposed to treated pine paling fence, was predominant over the other in the locality was against the weight of the evidence before it. In particular, the Drapers submit that this finding ignores the "recent survey" they undertook based upon, but not limited to, the aerial photograph which was contained in exhibit A 1. The "recent survey", which included canvassing neighbours, is referred to in the document attached to the Notice of Appeal. It is also referred to in the Appeal Submissions. 51Exhibit A 1 was before the Tribunal but there is no evidence that the recent survey as recorded in the attachment to the Notice of Appeal and the Appeal Submissions was. According to the Drapers, that "survey" indicated that timber fencing was predominant in the locality in that 25 of 38 dividing fences in the locality were timber. 52In so far as this "recent survey" is sought to be introduced as new evidence, there is no explanation as to why that evidence could not have been led at the Tribunal. It clearly could have been. We reject it as evidence in the appeal. 53Although it was not served as evidence in the appeal, we have reviewed the contents of Exhibit A 1 (the aerial photograph) from the file. Mr Gibbs had made submissions about this photo in the Tribunal. Further, it was mentioned several times by the Drapers in the Appeal Submissions and their Notice of Appeal. Mr Gibbs chose not to respond to it but noted, as we have observed above, "there is little point in arguing [the matters put by the Drapers in the Tribunal] again". Accordingly, we do not think Mr Gibbs is prejudiced by us looking at the photo in the appeal. 54The photo shows that there are both metal fences and timber fences in the locality of the properties. Whilst there may be more timber fences than metal fences, we do not think it could be said that one was predominant over the other. 55We have also considered the document filed and served in the Appeal by the Drapers containing typed extracts of the transcript of the recording of the hearing that they wish to rely upon. Whilst some reference is made to a survey, none of the matters identified by the Drapers go into the detail that the "recent survey" does. 56We have listened to the recording of the hearing which is in the material before us. Whilst at times the solicitor for the Drapers refers to his client's survey and seeks to distinguish it from Mr Gibbs "quick count", such references are said to arise from Exhibit A 1 to which he expressly took the Tribunal. As we have noted, there is no survey evidence attached to that exhibit. The only material is the photo with different fences marked in different colours. The result to be gleaned from that photograph was properly a matter raised by the Draper's solicitor in submissions. 57It appears to us that the Tribunal did consider the material placed before it by the Drapers, including the aerial photograph in Exhibit A 1. The Tribunal specifically recorded at [43] the Drapers submissions that the aerial photograph shows approximately 20 timber dividing and rear fences for 15 properties. 58The Tribunal also considered the material placed before it by Mr Gibbs as to the nature of dividing fences in the locality and his "observation" that 20 of the 28 properties within 100 metres of his land had some Colorbond fencing. 59The Tribunal was required to consider the issue of the kind of fencing used in the locality as one of the circumstances dictated by s 4 of the Dividing Fences Act. As we have noted at 18 above, the Tribunal found that neither parties evidence was determinative. Indeed, it is apparent that the Tribunal did not find either party's evidence as to the predominant type of fence in the locality persuasive. The most significant factor in the Tribunal concluding as it did was the view it undertook of the properties and the fences constructed on them. 60In the Appeal Submissions and in the document attached to the Notice of Appeal, the Drapers submit that the Tribunal had a limited opportunity to assess the fences in the locality when it conducted the view. They submit that the Tribunal could not have properly formed a concluded opinion on what type of fences there were in the locality based on the view it did conduct. However, the fact of the matter is that the Tribunal did conduct a view and in the opinion of the Appeal Panel was entitled to draw conclusions from what it observed. 61The evidence that the Drapers rely on in support of their contention that the Tribunal's decision in this regard was against the weight of the evidence is the " recent survey" conducted by them. As we have noted, there is no evidence that the results of the recent survey were before the Tribunal. The matters referred to by the Drapers in their appeal papers as to the conduct of the recent survey by Mrs Draper, including how it was done and her apparent qualifications to do so, were not so far as we can tell, matters before the Tribunal. There is no application for those matters to be considered by us as new evidence. Even if there was, as we have stated, there is no reason such matters could not have been put before the Tribunal and there is no basis for us to accept those matters as new evidence on the appeal. 62As we have observed above, in order for leave to be granted, we must be satisfied that the Drapers may have suffered a substantial miscarriage of justice in the sense identified in Collins v Urban relevantly at [77]. That is, we must be satisfied that the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal that it can be said that the conclusion was not one that a reasonable tribunal member could reach. 63We are not satisfied that this is the case in relation to the Tribunal's finding the subject of this ground of appeal. There was evidence as to the types of fences in the locality led by the Drapers. There was conflicting evidence from Mr Gibbs. Further, the Tribunal did attend the properties and conduct a view. Even if it was limited, the findings of the Tribunal in this regard are not, in our opinion, such that having regard to all of the evidence available to it, including the Drapers photographic survey, no reasonable tribunal member could make. We have reviewed the photograph and it does show fences of both metal and timber in the locality. 64Accordingly, we refuse leave to appeal on the ground that the decision of the Tribunal as to the type of fence predominant in the locality was against the weight of the evidence.

[8]

Ground 5: Denial of Natural Justice: how the Tribunal decided the fence should be colorbond i.e that the applicant has the choice of material 65 There is some confusion as to what this ground goes to. It appears from the material attached to the Notice of Appeal and the Appeal Submissions, that this ground in reality deals with the question of law as to whether Mr Gibbs, being required to use part of the dividing fence as a child-resistant barrier for the purposes of the Swimming Pools Act, and being responsible for the cost of that part of the dividing fence, can therefore choose what materials that part of the dividing fence is constructed of. It is in essence the same as ground 1. When viewed this way, we do not think this is a ground which requires leave as it raises a question of law. 66In the document attached to the Notice of Appeal, reasons are advanced in support of this ground suggesting that the decision was not fair and equitable. If that were truly the ground of appeal, leave to appeal would be required by reason of cl 12 of schedule 4 CATA. However, we think the reasons advanced both in that document and in the Appeal Submissions raise a question of law in respect to the operation and interaction of the Dividing Fences Act and the Swimming Pools Act. As such no leave is required. We will deal with that question when we deal with ground 1. We take the reference to the concept of natural justice as raising a question of law. 67There are submissions made by the Drapers, however, as to an asserted denial of procedural fairness. These assertions are found both in the document attached to the Notice of Appeal at pages 5 and 6 under the heading "Procedural fairness - bias" and in the Appeal Submissions at pages 10-13 under the heading "Procedural bias". 68It is important that the Notice of Appeal properly state the grounds of appeal and, if leave is required the reasons why leave should be granted. This has not been done here and we do not propose to treat these submissions as going to any of the identified grounds of appeal. 69If we were prepared to treat these submissions as a further ground of appeal asserting that there had been a denial of procedural fairness to or bias against the Drapers, we would not have granted leave to appeal. 70If there has been a denial of procedural fairness, the decision can be said to have been not fair and equitable (see Collins v Urban at 77 and the authorities there cited). A ground of appeal on the basis of a denial of procedural fairness would therefore require leave: cl 12 sch 4(1)(a) CATA. 71As we perceive it from the material relied upon by the Drapers for this allegation, their main complaints relate to two things. Firstly, the Drapers assert that there has been undue delay in the hearing of the matter since 22 February 2013. Secondly, they assert that evidence they had provided to the Local Land Board and then the Tribunal file went missing prejudicing the presentation of their case. 72As to the first matter, we do not accept that there has been such a delay so as to amount to procedural unfairness. Whilst ideally, matters of this type should be heard in a timely manner as is possible, we do not think that the delay here was such that the Drapers were prejudiced. We cannot conclude that the Drapers were denied a fair hearing as a result of any delay. 73The second ground of complaint by the Drapers arises from the fact that apparently, on more than one occasion, material they had filed in the Local Land Board when it was to hear the matter, and then in the Tribunal, was not on file. The Drapers submit that this meant that the Tribunal had not considered that material when it conducted the view and that it impeded the presentation of their case by their solicitor (for example because tags placed by him on his copy of the evidence were removed when that evidence was copied). 74We are not satisfied that the Drapers may have suffered any substantial miscarriage of justice by reason of this matter. All of the evidence they wished to rely on was placed before the Tribunal. It is not said that any of the missing evidence could not be reproduced so that they could not rely on it. It is apparent from the audio recording of the hearing that the presentation of their case by their solicitor was not impeded in any significant way. 75The Drapers complained to the Attorney General's Department about the fact of their evidence going missing and "administrative errors" of the Tribunal's registry which they say caused the evidence they had filed to go missing. In the document attached to their Notice of Appeal they ask: "Has our complaint created a bias?" In so far as this is some veiled attempt to submit that the Tribunal was affected by actual or apprehended bias such as to infect its decision, such a suggestion is without merit. 76As to actual bias, such a finding is a grave matter and the circumstances in which actual bias can be demonstrated solely from the published reasons for decision are said to be rare and exceptional: Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]-[74]. As to apprehended bias, the test is whether a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the question to be determined: Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 244 CLR 427; see also the discussion in Reid v Commercial Club (Albury) Ltd, supra at [75]-[78]. 77If such a suggestion is to be raised, it ought to have been raised squarely as a ground of appeal. It is not. No complaint was made by the Draper's solicitor to the Tribunal about bias. If any grounds for complaint did exist, they may have been waived, however, it is not necessary for us to determine this as we do not believe there is any basis for such a complaint to have been raised then or now. There is certainly no evidence to show actual bias by the Tribunal either in the manner in which it conducted the hearing or from its reasons for decision. Nor, in our opinion, is there any evidence to conclude that a fair-minded lay observer might have apprehended that the Tribunal might not have brought an impartial and unprejudiced mind to the resolution of the question before it. 78For the above reasons, we do not believe the Draper's may have suffered a substantial miscarriage of justice as a result of a lack of any procedural fairness so that the result of the Tribunal's hearing was not fair or equitable. We would therefore have refused them leave to appeal on any such ground if it was properly set out in the Notice of Appeal.

[9]

Ground 1 and 5 (as interpreted): Whether Mr Gibbs can choose the fence material based on the fact he has to comply with the Swimming Pools Act 79From the passages we have set out at [18] above, it appears to us that the Tribunal made the following critical findings as a result of the fact that 18 metres of the dividing fence was also to be a child-resistant safety barrier for the purposes of the Swimming Pools Act: (a)that the 18 metre length of fence to be used as the child-resistant barrier was not a length of fence to which the Drapers were obliged to contribute as it was excluded from the provisions of the Dividing Fences Act by the provisions of the Swimming Pools Act; (b)a fence used as a swimming pool fence and a dividing fence must incorporate the requirements of both uses; (c)if a treated pine fence is used it will need to be modified by Mr Gibbs in order to comply with his obligations under the Swimming Pools Act. (d)Compliance with the obligations under the Swimming Pools Act is solely a matter for Mr Gibbs and no liability falls on the Drapers; (e)If Mr Gibbs was obliged to provide a child-resistant barrier in compliance with the Swimming Pools Act then the material used and method of construction is his responsibility as owner of the pool and neither the Dividing Fences Act nor the Swimming Pools Act contemplates otherwise; (f)It is therefore a matter for Mr Gibbs to choose how he complies with his swimming pool obligations as he is solely responsible for the cost of that fence and liable to comply with the law. 80The findings in sub-paragraphs (a), (b) and (d) above may be accepted. We do not agree, however, with the findings in (c), (e) and (f). 81It is true that if a dividing fence is also to be used as a child-resistant barrier, in whole or in part, the fence must be both compliant with the Swimming Pool Act and regulations and be a sufficient dividing fence within the meaning of the Dividing Fences Act. However, if two possible types of fence can satisfy the requirements of both Acts, we do not accept that the provisions of the Swimming Pools Act mean that the choice of the type of materials used to construct that part of the dividing fence which is also the swimming pool fence falls solely on the owner of the land on which the swimming pool is situated. 82There is no inconsistency between the two Acts in these circumstances except to the extent that the cost of that part of the dividing fence to be used as a swimming pool fence is to be borne solely by the owner of the land on which the swimming pool is situated. This is the effect of ss 32-33 of the Swimming Pools Act we have referred to above. The Tribunal correctly held this to be the effect of that Act. 83It is to be noted that the Swimming Pools Act clearly contemplates that there may be circumstances in which a dividing fence will also be used as a swimming pool fence. In our opinion, where a fence which is to be used as both a dividing fence and a child-resistant barrier or swimming pool fence and can comply with the requirements of both Acts, then the Tribunal must apply the provisions of s 4 of the Dividing Fences Act in determining the standard of a sufficient dividing fence in those circumstances. The only constraint upon it would be that it could not order the owners of the land on which the swimming pool was not situated to contribute to the cost of that part of the dividing fence which is also to be the pool fence. 84Mr Gibbs asserts that the predominant issue is the duty of care that he would owe as the owner of the land on which the swimming pool is situated. We presume he means the duty of care he would owe as occupier of that land, with the responsibility to provide a swimming pool fence which complies with the provisions of the Swimming Pools Act and Regulations, to persons who may enter upon that land. Whilst it is understandable that he would be concerned to ensure he complied with his obligations as occupier, including in providing a compliant pool fence, we do not think that in the circumstances where a swimming pool fence is also to be used as a dividing fence, and the type of fence can be compliant with the Swimming Pools Act and a sufficient dividing fence within the meaning of the Dividing Fences Act, he would be in breach of that duty simply by reason that he could not choose the materials to be used to construct that part of the dividing fence which is also to be used as a swimming pool fence. 85There may be circumstances where there is only one type of fence which would satisfy the requirements of the Swimming Pools Act. In such a case, any dividing fence which was also to be used as a swimming pool fence would necessarily need to be compliant with that Act and to the extent that the Dividing Fences Act may provide otherwise (and we do not think it necessarily does), then by reason of s 33 of the Swimming Pools Act, that Act would prevail to the extent of any inconsistency. 86We have come to the conclusion that the Tribunal made an error of law in concluding that because the owner of the land on which the swimming pool is situated is required to pay for that part of the dividing fence used also as a child proof barrier, he can choose the materials used to construct that part of the dividing fence. 87In this case, it appears that a 1.8 metre Colorbond fence used as a dividing fence for the 18 metres where the fence is to serve both purposes and complies with the Swimming Pools Act. The question then becomes whether that means that it must be the type of fence used for the whole of the dividing fence, or only that part of it to be also used as a child-resistant barrier.

[10]

Ground 2: That the Tribunal erred in finding that a treated pine paling fence needs to be modified to comply with the Swimming Pools Act 88As we have set out at [80] (c) above, the Tribunal found that if a treated pine fence was to used as a dividing fence in this case, it would need to be modified (we assume only as to the 18 metres where it was also to be a child proof barrier) in order to also comply with the Swimming Pools Act. The Tribunal did not give any reasons for this conclusion. 89Part of the evidence the Drapers put before the Tribunal in Exhibit C(1)(b) was a document described as "Annexure T-"Swimming Pool Safety Barrier Guide & Options to Australian Standard AS 1926.1 - 2007 & BCA". The Tribunal again referred to this evidence at [41] of its reasons noting the requirement of a Non Climbable Zone (NCZ) being incorporated into a safety barrier all around a swimming pool perimeter. A NCZ must be a 900 mm vertical continuous section on the safety barrier or fence, free of projections and indentations greater than 10 mm, that can be used as a finger or foothold, enabling a child to climb up or down the barrier or fence. Whilst this document was not served as evidence in the appeal, once again the Drapers referred to it in the Notice of Appeal and Appeal Submissions. Mr Gibbs specifically referred to this aspect of the evidence in his Reply to Appeal. 90The Tribunal referred to 5 options set out in the Guide if a three rail 1.8 metre paling fence is sought to be used as a pool safety barrier. Those options include "Option A" which is described as the "easiest option" with the rails of a paling fence being on the non-pool side of the fence. 91We have reviewed that Guide. In this case, it is not apparent to us why a 1.8 metre treated pine paling fence with the rails on the Drapers side, if it was constructed so as to otherwise satisfy the requirements of AS 1926.1 with respect to the NCZ, would require modification. We have concluded that the Tribunal erred in concluding otherwise. 92As such, we have concluded that because of the errors in respect of grounds 1 and ground 2 identified above which were important in its decision that the whole of the dividing fence should be a Colorbond fence, the Tribunal erred in so finding. As we discuss below, this does not mean, however, that the dividing fence should necessarily be a treated pine paling fence as submitted by the Drapers.

[11]

Ground 6 - the new evidence 93We have referred above to the new evidence that the Drapers seek to rely on in the appeal, being evidence that Mr Gibbs had commenced to build a Colorbond fence adjacent to the existing dividing fence along the 18 metre length of the area for which the dividing fence would also be used as a child-resistant safety barrier. In order to rely on the fresh evidence, we must be satisfied that the there is a significant possibility that a different, more favourable result would have been achieved if the evidence was before the Tribunal. If we are so satisfied, then if the evidence was not reasonably available at the time of the hearing, it is open to conclude that the Drapers may have suffered a substantial miscarriage of justice within the meaning of cl 12 of sch 4 of CATA so that leave to appeal may be granted: see the discussion of the relevant principles and authorities in Collins v Urban at [72]-[75]. 94The fresh evidence was not reasonably available at the time of the hearing before the Tribunal. The Drapers submitted it on 20 June. It related to work being undertaken by Mr Gibbs to construct a swimming pool fence adjacent to the dividing fence between the Draper Property and the Gibbs Property and a result of a Pool Safety Order served on him by Sutherland Shire Council dated 22 May 2014. The hearing of the matter was on 6 May 2014. 95It is apparent from the response provided by Mr Gibbs on 8 July 2014, that he has undertaken the work of constructing a 1.8 metre high Colorbond fence adjacent to the existing dividing fence along a length of 20 metres. The extra two metres from the 18 metres required for the swimming pool fence is explained as being a 1 metre overlap to the 90 degree adjoining pool fence on Mr Gibbs property. As such, Mr Gibbs has constructed a child-resistant safety barrier on his property along the whole length of the 18 metres of the boundary (but not on the boundary) between the two properties that was the subject of consideration by the Tribunal. 96As we have set out above, the fact that the 18 metres of the proposed dividing fence was to be also used as a child-resistant safety barrier, was an important part of the Tribunal's reasoning. That fact no longer exists as Mr Gibbs has constructed a fence apparently compliant with the Swimming Pools Act on his property so as to comply with the Council's order. If that had been done at the time of the hearing, there is a significant possibility that the Drapers would have obtained a different, more favourable result in the Tribunal. Accordingly, we conclude that leave ought to be granted for the Drapers to rely on this evidence on the appeal. 97It seems to us that the construction by Mr Gibbs on his property of the Colorbond fence as a swimming pool fence so as to comply with the Council's order removes a substantial factual basis on which the Tribunal's decision is based. It may be that the Tribunal would have concluded that having regard to that fence construction adjacent to the boundary, and the matters it is required to consider pursuant to s 4 of the Dividing Fences Act, a dividing fence constructed of treated pine palings for the whole (or part) of the length of the common boundary was of a standard to be a sufficient dividing fence. 98It is also possible that the Tribunal may have concluded that because of that construction, the whole of the dividing fence should be Colorbond with either the Colorbond fence recently constructed by Mr Gibbs being moved to the boundary (at his expense) or remaining where it is and connected to the remainder of the fence to be constructed. 99There may be other possible conclusions that the Tribunal would have reached had it known of the construction of the pool fence recently constructed by Mr Gibbs. 100In the circumstances, we do not think the decision of the Tribunal should stand.

[13]

Costs 105The Drapers have sought an order that Mr Gibbs pay their costs of the hearing and of the appeal if they were successful. The main basis was that they had been put to time, anxiety and expense in defending Mr Gibbs' application. They say they have incurred significant legal expense in engaging a solicitor to advise and appear for them. In his document headed " Re Mr & Mrs Drapers Significant New Evidence" lodged with the tribunal on 11 July 2014, Mr Draper says: As for Mr and Mrs Drapers "legal fees: At the onsite hearing on 31st January 2014, Mrs Draper stated that they had spent thousands of dollars on legal fees; the Senior Member, Mr Boyce, then advised Mr and Mrs Draper that professional legal representation was most unusual at NCAT hearings as both parties usually represent themselves. Despite this advice, Mr and Mrs Draper made the choice to continue paying for legal representation. 106Section 23 of the Dividing Fences Act provides that the Tribunal may award costs against either party. Section 60(1) of the CATA provides that each party in proceedings before the Tribunal is to pay the party's own costs. Section 60(2) provides that the Tribunal may award costs only if it is satisfied that there are special circumstances warranting the award of costs. The matters to be considered in determining whether there are special circumstances are set out in s 60(3). They include whether a party has conducted the proceedings in a manner that unnecessarily disadvantaged the other or has prolonged the hearing, the relative strengths of the claims by the parties and the nature and complexity of the case. 107This matter was originally commenced in the Local Land Board established under the Crown Lands Act. Clause 7 of Division 3 of Schedule 1 the CATA therefore applies to these proceedings. The proceedings were part heard in the Local Land Board at the time of the establishment of the Tribunal. In such cases, because the Tribunal in determining the part-heard matter is exercising the functions that the relevant existing tribunal (in this case the Local Land Board) had immediately before its abolition, and the provisions of the relevant Act (here the Dividing Fences Act as it was prior to 1 January 2014), statutory rule or other law that would have applied to or in respect of the proceedings had this Act and the relevant amending Acts not been enacted continue to apply, the provisions of s 60 of the CATA have no role to play in respect of the hearing: see Rainbird v Ghahyazi [2014] NSWCATCD 92 at [36]. 108However, Appeal proceedings are in a different category to first instance proceedings. The effect of the decision of an appeal panel of the Tribunal in the case of NSW Land and Housing Corporation v Diab [2014] NSWCATAP 8 is that appeal proceedings are not governed by the provisions of clause 7 of schedule 1 of the CAT. That means that the relevant law applicable to these appeal proceedings is, in so far as costs are concerned, contained in S23 of the Dividing Fences Act and S60 of the CATA as opposed to a consideration of S23 alone (which governs the position of the proceedings at first instance). 109In so far as the appeal is concerned the Drapers have been successful and therefore their claim to costs of the appeal require consideration. 110The matter was not without complexity and has involved a consideration of the interaction of the Dividing Fences Act and the Swimming Pools Act. Although the amounts at stake are not large, the Drapers were entitled to seek legal advice having regard to the complexity of the issues. 111Costs are awarded to compensate the successful party, not to punish the unsuccessful party. We have come to the conclusion that the Drapers are entitled to an order for their costs. However, we think that such an order should be limited in amount. There is no evidence before us as to the exact amount of legal costs that the Drapers have incurred. There is reference to "in excess of $10,000" and " exceed $12,000". These amounts seem high and are disproportionate to the amount at stake. In the circumstances we are of the opinion that the appropriate order is to award costs in the amount which the parties agree or which are assessed but in any event not to exceed $2000. 112The basis for the decision that costs of the appeal should be the subject of the order referred to is that in the view of the Appeal Panel these appeal proceedings demonstrate special circumstances warranting an award of costs by reason of the nature and complexity of the appeal proceedings. Accordingly the provisions of S60(2) and S60(3) (d) of the CATA are engaged. 113Accordingly, there will an order that Mr Gibbs pays the Drapers costs of the hearing of the appeal in the terms above described. 114No orders for costs is made in respect of the first hearing. That is a matter which the parties may if they wish agitate before the reconstituted Tribunal when the proceedings are reheard. Orders 115Accordingly we make the following orders: (1)Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 the requirement for an oral hearing of the appeal be dispensed with and the matter be heard on the papers. (2)Leave to appeal on grounds 3 and 5 refused. (3)Appeal allowed. (4)Set aside the orders of the Tribunal made 23 May 2014. (5)Remit the matter to the Tribunal constituted by a member other than the member who made the original decision, to be determined in accordance with these reasons and otherwise according to law. (6)The Drapers are not to be ordered to contribute to any costs for the relocation of the Colorbond pool fence (should Mr Gibbs decide to relocate it or it is necessary to do so) built by Mr Gibbs in compliance with the Pool Safety Order issued to him by Sutherland Shire Council on 22nd May 2014. (7)Mr Gibbs is to pay the Drapers' costs of the appeal in the amount which the parties agree or which are assessed and in any event not to exceed $2000. 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. Principal Registrar

Draper v Gibbs

At a glance

Court

Decision date

Source

Judgment (14 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (14)

Cited By (3)