Johanna v Kovacic

Introduction

This appeal relates to an order made by the Tribunal in application COM 20/18135 on 23 November 2020. On that occasion the Tribunal dismissed proceedings brought in respect of a dividing fence dispute pursuant to Section 55(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) because the Tribunal considered there had been a want of prosecution. In those proceedings, the applicant was Evelyn Johanna, the appellant in these proceedings. The respondents in both of the proceedings at first instance and on appeal are Mr and Mrs Kovacic.
Ms Johanna commenced proceedings in the Consumer and Commercial Division by application dated 28 April 2020. In that application she had sought an order determining the boundary line on which the fencing work is to be carried out. That application was based on a notice Ms Johanna had issued to the respondents dated 5 March 2020. That notice had been issued under Section 18 of the Dividing Fences Act 1991(NSW) (DF Act).
The parties share a common boundary between their two properties on which a fence has been constructed by the respondents. This fence was apparently constructed in circumstances where the respondents had been carrying out building work on their own property and had demolished an existing dividing fence. Amongst other things, Ms Johanna complains that the demolition and reconstruction occurred without her agreement and were unnecessary and that the new fence is not on the boundary line.
The proceedings had been the subject of two previous directions hearings in which the Tribunal had ordered the parties to file and serve evidence in support of their respective positions so as to facilitate a final hearing. The date allocated for the final hearing was 23 November 2020.
At the hearing at first instance, the Tribunal found that neither party had provided to their opponents documents required to be exchanged pursuant to the procedural directions already made. While Ms Johanna had apparently provided documents to the Tribunal, she had not served her documents on the respondents.

Consideration

A decision to dismiss proceedings for want of prosecution is an interlocutory decision within the meaning of s 4 of the NCAT Act. Consequently, leave to appeal is required on any grounds: s 80(2)(a) of the NCAT Act.
The principles applicable to the grant of leave to appeal an interlocutory decision are set out by the Appeal Panel in Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 at [35]. The determination of the leave question includes a consideration of the manner in which the discretion to dismissed the proceedings was exercised and the strength of Ms Johanna's substantive application.
The decision made by the Tribunal was under s 55(1)(d) of the NCAT Act. This section provides: (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances - … (d) if the Tribunal considers there has been a want of prosecution of the proceedings.
What constitutes a want of prosecution and the principles applicable in exercising any discretion to dismiss proceedings under s 55(1)(d) was considered by the Appeal Panel in Bousgas v H.D. Constructions (Aust) Pty Ltd [2017] NSWCATAP 122 at [25] and following. In order for the Appeal Panel to interfere with an exercise of discretion under this section, an appellant must show that an error has occurred of the type found in House v The King [1936] HCA40; [1936] 55 CLR 499 at 504-505.
Despite being invited to do so, Ms Johanna did not address the substantive issues set out above concerning whether the Tribunal was in error for dismissing the proceedings for want of prosecution. She did not challenge the finding of the Tribunal that she had failed to serve her documents on the respondents.
In addition, Ms Johanna did not make any substantial submissions concerning whether or not her application was, essentially, incompetent because it sought an order to carry out fencing work under s 14 of the DF Act in circumstances where no notice had first been served as required by s 11(2) of the DF Act.
In this regard, at the hearing of the appeal we drew to the attention of the appellant that: 1. she was required to serve a fencing notice under Section 11(2) of the DF Act after which she was permitted to make an application to this Tribunal if there was no agreement with the respondents as to the fencing work to be carried out; and 2. there is no jurisdiction of this Tribunal to hear and determine a claim for the making of a fencing order until such requirements are met: see s 12(2) of the DF Act and Larney v Johannson [2013] NSWCA 409 per Meagher JA at [10].
As we said above, the submissions made by Ms Johanna did not deal with the matters to which we have referred. Rather, Ms Johanna made submissions concerning various surveys which had been carried out, that the fence constructed by the respondents was not on the boundary line at all points and that the construction of the fence in its present location impeded her access to her hot water service found on the side of her house. In doing so, Ms Johanna made reference to various photographic material provided in support of the appeal and which, apparently, had been filed with the Tribunal at first instance.
It is in this context that the application for leave to appeal should be determined.
Having regard to the facts that we have set out above, and which are not disputed in this appeal, it is clear there has been some failure by the appellant to prosecute her claim, at least insofar as it involves complying with the Tribunal's directions.
As explained by the authorities set out in Bousgas at [28], dismissing proceedings for want of prosecution should ordinarily only occur in circumstances where there is a clear case warranting such an order. In doing so, the Tribunal is required to balance the prejudice to the respective parties. Also relevant is the conduct of an opponent and the steps taken by them "to activate an apparently inactive [party]".
This is not a case where the respondents applied to dismiss the proceedings under s 55(1)(d) of the NCAT Act. Rather, the Tribunal decided to unilaterally terminate the proceedings by reason of the default of both parties in complying with directions. In doing so, the Tribunal did not identify any prejudice to either party arising from their respective default in complying with Tribunal orders. Rather, reference was only made to the resources of the Tribunal.
Having regard to the reasons of the Tribunal, we might have been inclined to think that the discretion exercised in the present circumstances had miscarried.
However, as also stated in Bousgas at [28], the Tribunal is also required to consider Ms Johanna's prospects of success. While this was a matter not considered by the Tribunal at first instance, it is a relevant consideration in the present case in deciding whether to grant leave to appeal an interlocutory decision and, if so, whether to intervene in the exercise of the Tribunal's discretion.
As we have outlined above, no orders are sought in the original application before the Tribunal to determine any costs in connection with defining the boundary line, as might arise as a matter to be determined in respect of s18(4) and (5) of the DF Act. Rather, the application is in the nature of an application for an order to do fencing work under s 14 of the DF Act. This work is claimed to involve the demolition of the existing fence and its placement on the correct boundary line.
The construction of a dividing fence other than on the boundary line between two properties is a factor to be considered in determining whether a fence is sufficient and whether a fencing order should be made: Purcell v Chadwick [2018] NSWCATAP 50 at [22] and following. Consequently, it might found an application for an order under s 14 of the DF Act.
However, in the present case, the application to the Tribunal has no prospects of success. This is because: 1. a fencing notice has not been served in compliance with s 11(2) of the Dividing Fences Act; and 2. the notice issued under s 18 of the DF Act by Ms Johanna does not otherwise comply.
Consequently, for the reasons set out in Larney above, the Tribunal has no jurisdiction to determine the current dispute insofar as a fencing order is sought.
Further, proceedings have been dismissed on an interlocutory basis without a determination on the merits. No findings have been made concerning: 1. the sufficiency of the fence constructed by the respondents; or 2. whether, if a notice was served under Section 11(2), a fencing order should be made under Section 14 of the DF Act.
As such, no injustice to the appellant can arise.
In these circumstances, where the Tribunal has no jurisdiction to determine the substantive application or to make the orders sought in the Notice of Appeal, and where no substantive rights have otherwise been determined, it is inappropriate to grant leave to appeal the interlocutory decision as there is no utility. Rather, the application for leave to appeal should be refused.

At a glance

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Judgment (5 paragraphs)

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Legislation Cited (2)

Cases Cited (4)

Cited By (1)