KNOX & ANOR v DWYER & ANOR No. SCCIV-01-842 [2001] SASC 315 (3 September 2001)

REAL PROPERTY --- FENCING AND BOUNDARIES OF LAND --- FENCES AND FENCING MAGISTRATES --- APPEALS FROM AND CONTROL OVER MAGISTRATES --- SOUTH AUSTRALIA --- APPEAL TO SUPREME COURT PROCEDURE --- COURTS AND JUDGES GENERALLY --- JUDGES --- DISQUALIFICATION FOR INTEREST OR BIAS --- REASONABLE SUSPICION OF BIAS

Fencing dispute - appeal against decision of magistrate not to disqualify himself by reason of the appearance of bias - comments facilitating a resolution - no finding of prejudgment - appeal against order for compensation - whether magistrate should have removed matter to Supreme Court as an encroachment matter - magistrate empowered to make such an order - no basis demonstrated to interfere with orders - appeal dismissed.

• Fences Act 1975 s 12;
• Encroachments Act 1994-1969 ss 4(2)(a), 4(2)(b), referred to.
• Johnson v Johnson [2000] HCA 48; (2000) 174 ALR 655, applied.
• Clarke v Wilkie (1977) 17 SASR 134, distinguished.

Plaintiff: HILDA MCKENZIE KNOX & ANDREW MCKENZIE KNOX

Judgment No. [2001] SASC 315

On Appeal from MAGISTRATES COURT (MR A J CANNON, SM)

[2001] SASC 315

This is an appeal from a magistrate sitting in the civil jurisdiction of the Magistrates Court at Adelaide. The plaintiff, Hilda Knox, is the registered proprietor of premises situated at 2 Kilbryde Avenue, Torrens Park. The defendants, Robert and Rosslyn Dwyer, are the registered proprietors of the adjacent property situated at 2A Kilbryde Avenue, Torrens Park. Proceedings were initiated by Mrs Knox but subsequently her son, Andrew Knox, who holds a Power of Attorney on her behalf, was also joined as a plaintiff. Mr Knox then conducted the proceedings for the plaintiffs, both before the magistrate and on appeal. Mr Retalic acted as counsel for the defendants on both occasions.

The dispute between the parties primarily relates to the fence which is currently erected between the two properties. It does not appear to be disputed that originally there was a picket fence between them. Over the years it was covered with ivy and became somewhat dilapidated. A row of candle pines had also been planted along the fence line. They eventually attained a height of about 20 feet and were removed by the Dwyers sometime in 1993. The Dwyers then erected a new brush fence which equated in length to about two-thirds of the original fence. They did not at that time serve a Fences Act Form 2 upon Mrs Knox.

In about 1997, the Dwyers wished to complete the remaining third of the fence. On this occasion they served Mrs Knox with a Form 2 notice. Mrs Knox initially objected in a Form 3 cross notice. Subsequently, however, Mrs Knox agreed to contribute half of the cost of this section of fence, being the sum of $459. Eventually, extra labour added to the original estimate. Mrs Knox paid the sum of $580 to the contractor, Hewitt Fencing, on 29 May 1998.

At the beginning of this year, the Dwyers placed their property on the market. This prompted Mr Knox to obtain a report from Mr Richard Abbott, a surveyor, dated 9 February 2001 (Exhibit P1). Mr Abbott's plan showed that the new fence had not been built on the boundary line between the two properties but instead was a short distance inside the boundary of Mrs Knox' property. The measurements on P1 show that the intrusion into the Knox' property is not consistent for the whole length of the fence. It is .04 m at Kilbryde Road, .17 m at about the middle and reaches a maximum of .5 m at the other end. The total area of land concerned is 9 square metres.

On 12 February 2001, Mrs Knox issued the current proceedings against the Dwyers seeking the relocation of the fence to its surveyed position, together with reimbursement for the cost of the surveyor's report. The summons also included claims for damages arising out of the Dwyers use of Mrs Knox' driveway without permission and damage occasioned to it on the occasion of a concrete pour to a building on the Dwyer's property. In addition there was a claim for the re-laying of a cracked section of the driveway, the cost of some drainage undertaken in 1998, reimbursement for removal of shrubs and "(a)ggravated and/or exemplary damages to the contumelious disregard of the plaintiffs' rights and protection of property and for loss of amenity of the land, her rights and enjoyment of the plaintiff of her property".

Issue was joined between the parties, although as a result of the survey, the Dwyers admitted in their pleadings that the fence had not been erected on the common boundary between the two properties. There is an allegation by Mrs Knox that she was misled by the Dwyers into believing that they had obtained a survey before they erected the fence. That issue has not been resolved, but in my view is of limited relevance in the light of the fact that the Dwyers accept responsibility for erecting the fence in the incorrect position. In their pleadings, the Dwyers said they would remove the existing fence at their own expense and would arrange the erection of a new dividing fence between the properties along the common boundary. They asked, however, that Mrs Knox, jointly with them, pay the costs of the replacement fencing work. The Dwyers also agreed to pay one-half of the cost of the surveyor's report prepared on behalf of Mrs Knox, and one-half of the title search.

The matter came on for hearing before the learned magistrate on 30 May 2001. Mrs Knox gave evidence and was then cross-examined in part by Mr Retalic. The case continued on 31 May 2001. Before cross-examination was completed there was some discussion as to settlement proposals. It is recorded in the transcript "It is agreed that a new fence be constructed in accordance with the survey of Mr Abbott. The plaintiff and defendant are each to pay half the cost of the new fence but Mrs Knox is to be given credit for the $585 which she paid for the existing fence, to be a Colorbond fence with post and rails on the defendant's side". The trial was then adjourned for a view at the subject properties.

On the hearing of the appeal, it did not appear to be in dispute that the essential purpose of the view was to assist the magistrate in his consideration of the balance of the action which related to the trespass and damages claims. At that stage, the fencing matter had resolved by agreement. There is no record on the file of what occurred on the view, although it appears (inter alia) that the magistrate inspected the stumps left by the removal of the candle pines, one of which can be seen in photo 40 of P2. When court resumed after the view, Mr Knox applied to have the matter removed to the Land and Valuation Division at the Supreme Court. That application was opposed by Mr Retalic. The learned magistrate then made some brief remarks in the course of which he said "Although I have only heard Mrs Knox in evidence and in cross-examination, both parties agree that following a view of the property earlier this afternoon, I should make a determination in this matter". The magistrate referred to Mr Abbott's survey and mentioned that the fence was .04 of a metre inside the boundary of the plaintiffs' fence. This was in fact an error as the magistrate was relying on the measurement at Kilbryde Road, but as I have mentioned, it is in some parts wider than that. I do not, however, think that this error has any impact on the issues to be determined in this appeal.

The magistrate went on to refer to the agreement which had been reached prior to the view whereby the fence was to be removed and replaced in accordance with the surveyor's marks. He then said:

"Having been to the premises, and looking at the fence so far as the boundary of the defendants' property is concerned, because of the amount of gardening which would be damaged and have to be replaced on both properties by workmen removing the fence and being on a slope, new footings would be required, I have decided to vary any agreement pursuant to s 12D of the Fences Act. I note that the property is 18.29 metres wide on Kilbryde Road and also at the rear of the property, according to the survey.

At the site, the plaintiff indicated that at some stage, she or they may wish to pull down the existing house and develop it into complexes. The existing half metre would not prevent that occurring because I have a property in the area which is 16.93 metres wide and I have approval to construct duplexes on it.

I will just make one finding. I understand from the defendant, although I have not heard actually the defendant in evidence, that the present brush fence was constructed on the site of the previous fence which existed. On the site, I noted two or three large stumps of trees extremely close to the existing fence. In evidence, there was mention by Mrs Knox that there had been a row of some candle pines in the area concerned which had been removed by the defendant. There is, however, no complaint about that but I just make the observation and find on the balance of probability because of those factors, that the defendant did construct the present brush fence where the previous fence was situated. (emphasis added)

Because of the necessity of getting rid of the present footings, the damage to the garden and other structures and boards on each or both of the properties which would be interrupted by any pulling down of the fence or even damaged, I determine, pursuant to s 12(ii) that the defendant pay compensation for the plaintiff's loss of occupation of the land between the line indicating the western side of the plaintiff's property and the present boundary and I suggest or determine that that valuation be based upon the valuation of a licensed valuer to be determined by agreement between the parties or in default of agreement, by a valuer nominated by the Royal Society of Valuers or the Real Estate Institute."

Mr Knox then requested that the matter be adjourned to enable an appeal to be lodged to the Supreme Court and requested that an order be made under the Encroachments Act 1944-1969. The learned magistrate declined to make an order referring the matter to the Supreme Court or any order under the Encroachments Act. He reiterated that he would adjourn the matter for a valuation, the cost of which was to be borne equally between the parties. He also adjourned for a report on the probable cause of the damage to a slab of concrete in Mrs Knox' driveway which he described as appearing "to have risen at the southern end of the slab in question and which also has three large chips in it". He also adjourned the question of trespass. Mr Knox then requested the magistrate to disqualify himself when the trial resumed on the ground "that it is a travesty of justice". The magistrate refused to disqualify himself.

The present notice of appeal was then filed. This canvasses a large range of issues. There are complaints about matters relating to the purported damages claim with respect to the driveway and the trespass claim. As the magistrate has not yet made any final order with respect to those claims, I indicated in the course of argument that, in my view, the appeal as to those matters was incompetent. In the course of argument, however, it appeared that Mr Knox' real complaint about those matters was concerned with the magistrate's refusal to disqualify himself from the further hearing of this matter.

Mr Knox also complained of certain comments made by the magistrate in the course of the trial. These apparently related to intimations from the magistrate as to the prospects of success of the claim with respect to aggravated or exemplary damages, the trespass claim, and comments about the failure of Mrs Knox to claim on her own insurance policy for the damage to her drive. Mr Knox suggested that the views expressed by the magistrate as to these matters represented findings which precluded him from continuing with the trial.

It is now settled that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias is whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question that he or she is required to decide. For present purposes it is convenient to refer to the decision of the High Court in Johnson v Johnson [2000] HCA 48; (2000) 174 ALR 655. In that case, the court was required to consider whether statements made by the trial judge in the course of an argument about discovery that he would principally be relying on witnesses other than the parties and other documents to determine the truth, constituted a pre-judgment of the matter. After referring to the Australian test, the court said (per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) at 658:

"[12] That test has been adopted, in preference to a differently expressed test that has been applied in England; cf Locabail (UK) Ltd v Bayfield Properties Ltd [1999] EWCA Civ 3004; [2000] QB 451, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be see to be done; cf R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259 per Lord Heward CJ. It is based upon the need for public confidence in the administration of justice. 'If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision'; R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 263; [1976] HCA 39; 9 ALR 551 per Barwick CJ,Gibbs, Stephen and Mason JJ. The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial'; Vakauta v Kelly (1998) 13 NSWLR 502 at 527 per McHugh JA, adopted in ; at 584-5 per Toohey J.

[13] While the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge; Webb v R [1994] HCA 30; (1994) 181 CLR 41 at 73; [1994] HCA 30; 122 ALR 41 per Deane J, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 571; [1989] HCA 44; 87 ALR 633, Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of 'the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case'. See also Re Lusink; Ex parte Shaw (1980) 32 ALR 47 at 53; 55 ALJR 12 at 15 per Murphy J. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them. (emphasis added)

[14] There was argument in this court, prompted by Anderson J's explanation of what he intended to communicate, about whether the effect of a statement that might indicate prejudgment can be removed by a later statement which withdraws or qualifies it. Clearly, in some cases it can. So much has been expressly acknowledged in the cases; eg Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 372; [1986] HCA 39; 66 ALR 239 per Dawson J; Vakauta v Kelly [1989] HCA 44; 167 CLR 568; (1989) 87 ALR 633 at CLR 572 per Brennan, Deane and Gaudron JJ, 577 per Dawson J. No doubt some statements, or some behaviour, may produce an ineradicable apprehension of prejudgment. On other occasions, however, a preliminary impression created by what is said or done may be altered by a later statement. It depends upon the circumstances of the particular case. The hypothetical observer is no more entitled to make snap judgments than the person under observation."

Kirby J in a separate judgment said at para 53:

"[53] The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer; Raybos Australia Pty Ltd v Tectran Corp Pty Ltd (No 9) (CA(NSW), 27 November 1990, BC 9001712, unreported), p 20, cited in Spedley Securities (1992) 26 NSWLR 411 at 419. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided; R v George (1987) 9 NSWLR 527 at 536 per Street CJ. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers; Galea v Galea (1990) 19 NSWLR 263 at 282. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted; Wentworth v Rogers (No 12) (1987) 9 NSWLR 400 at 422. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality; R v S (RD) [1997] 3 SCR 484 at 533; President of the Republic of South Africa v South African Rugby Football Union ; at 177. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context; R v S (RD) at 505; Galea v Galea at 282. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious; cf R v S (RD) at 505."

In light of those remarks it is necessary to consider what was said by the magistrate in this case. I have already mentioned his comments with respect to the fence. The remaining comments arose in the context of the claims made by Mrs Knox with respect to trespass and damage to her concrete driveway.

Essentially, the evidence of Mrs Knox as to the trespass claim appears to be that over a period of four to five years there were occasions on which the Dwyers, or contractors acting on their behalf, had used her driveway without permission. She said that the Dwyers had built a new carport which eliminated their driveway. They had therefore used her driveway when removing the candle pines and erecting the new fence.

The second aspect of the case related to damage alleged to have occurred to Mrs Knox' driveway at the time that the Dwyers were having a concrete floor poured with respect to their garage. Mrs Knox' evidence on this topic was to the effect that before the last section of the fence was completed, the Dwyers asked her for a letter of consent for a concrete truck to use her driveway to enable them to pour the concrete floor. She refused. Later, without prior warning, a concrete worker attended at her home in order to pour the cement. He asked her to move her car from her driveway, which she did. She said the driveway was brittle and unable to take the weight of the truck. Some roots from the next-door trees had lifted it slightly but, following the concrete pour, the driveway was chipped and cracked.

In the course of cross-examination on this topic, Mr Retalic asked whether Mrs Knox had made any claim on her insurance policy with respect to the damage to the driveway and she replied in the negative. The evidence then continued as follows (at Tr 52):

Q. It's to pay for things that get lost or damaged that are associated with the house, isn't it, as you understand it.

A. Well, I understand that but I don't think if somebody brings in a load of cement against your wishes that the insurance company would be happy about that.

Q. You see, you're quite right. They may not be too happy but they might have rights against the person who caused the damage.

A. I had nothing to do with the cement coming in. It was just brought in. How could I be liable?

Q. I don't think his Honour is suggesting that."

The issue of the cement truck was re-visited later in evidence. The magistrate suggested to Mr Knox that the claim with respect to the damage to the driveway might more appropriately be against the driver of the truck or the company or his employer on the basis that the driver had a responsibility not to drive on to a driveway which he knew would not accept a truck of that particular weight.

There was then a further brief discussion about the issue of consent and whether in fact damage had occurred. It was at that point that the agreement was reached concerning the fence and the court adjourned for a view. Upon returning from the view, the magistrate then made the order varying the original agreement as to the fence and refused Mr Knox' application to refer the matter to the Supreme Court as an encroachment matter.

In my view, there is nothing in the remarks made by the magistrate in the course of the hearing to suggest that he had pre-judged the matter. The comments made by the magistrate appeared to go no further than directing the Knox' attention to other remedies which might be available to the plaintiffs, as well as endeavouring to facilitate a resolution of the remaining claims. I also consider that the magistrate was correct when he refused to remove the matter to the Supreme Court as an encroachment matter.

Section 2 of the Encroachments Act defines an "encroachment" as:

"encroachment by a building, and includes encroachment by overhang of any part as well as encroachment by intrusion of any part in or upon the soil."

"(B)uilding" is defined as "a substantial building of a permanent character and includes a wall".

Mr Knox relied upon the decision of Wells J in Clarke v Wilkie (1977) 17 SASR 134 to argue that the offending structure in this case was covered by the Encroachments Act. In that case, Wells J held that a driveway was a "building" within the meaning of the Act. He was therefore invested with jurisdiction to deal with it as an encroachment. He said (at 139):

"In my judgment, the Act was plainly remedial and innovative in character, and was designed to set at rest the depressing, and often prolonged, disputes between neighbours over boundary lines and alleged encroachments that are both substantial and permanent. Such disputes are age-old and invariably, in the protagonists, cause intense emotion and the suspension of rational thought. It is not without good reason that the draftsman in Deuteronomy in the Bible was moved to write, 'Cursed be he that removeth his neighbour's landmark'. The Act should accordingly receive a fair, large and liberal construction. (See also s 22 of the Acts Interpretation Act, 1915, as amended). The Court should not, in my judgment, be astute to restrict the beneficial work of the Act, by placing unreasonable limits on the jurisdiction conferred by it."

In this case, however, the offending structure is a fence. Although there may be circumstances in which a fence could be considered to be an encroachment, in my view, this is not such a case. Mr Knox agreed that he instituted proceedings in the Magistrates Court on the basis that this was a fencing dispute. He apparently resisted suggestions made by the Dwyers' legal representatives in pre-trial applications that this was an encroachment matter. The case proceeded, appropriately, in my view, as a fencing dispute. Mr Knox did not appear to have had any desire to treat this as an encroachment matter until he was confronted with a decision of the magistrate which did not require the removal of the fence.

In any event, it would not necessarily follow that a court accepting jurisdiction in this matter as an encroachment case would order the removal of the fence which is clearly the only result which Mr Knox is prepared to entertain. Removal of a "building" which has encroached on another property is only one of the orders the court is empowered to make under the Encroachments Act. The court could consider resolving the matter by simply making an order for payment of compensation (s 4(2)(a)) which is in effect what the magistrate has done in this case pursuant to a similar provision in the Fences Act. The court could also order under s 4(2)(b):

"the conveyance transfer or lease of the subject land to the encroaching owner, or the grant to him of any estate or interest therein, or any easement, right, or privilege in relation thereto".

Mr Knox did not, however, suggest that there should be a conveyance or an easement of the disputed land to the Dwyers as part of the resolution of this matter nor have the Dwyers sought any alteration to the title.

The notice of appeal also asserts that the magistrate erred in that he had no jurisdiction to make the orders as to payment of compensation and the obtaining of a valuation under the Fences Act or any other act within the jurisdiction of the Magistrates Court. The magistrate in making the orders in this matter, however, was clearly exercising the jurisdiction invested in him by virtue of s 12(2)(a) of the Fences Act 1975 which (inter alia) empowered him to make an order for compensation for loss of occupation of land as a result of the erection of a fence otherwise than upon the boundary of contiguous land.

The magistrate did, however, make this order without hearing any further evidence from the parties. This was one of the matters relied upon by Mr Knox in seeking an order on appeal that the magistrate should be disqualified from the further hearing of these matters.

Mr Retalic submitted, however, that as far as the dispute relating to the fence itself was concerned, all the evidence had been completed at the time the parties reached their agreement. Although there had been a later variation thereof by the magistrate, there was no other relevant evidence which could have affected that decision. The Dwyers had always acknowledged that they bore the responsibility for the incorrect placement of the fence and were prepared to abide by the magistrate's decision with respect to that matter.

Mr Knox maintained, however, that he had been denied the opportunity of giving evidence. In the course of argument I asked Mr Knox to identify the further evidence that he wished to call with respect to the fencing dispute. Mr Knox said he wished to give evidence to challenge the finding of the magistrate that the Dwyers had replaced the fence in the position of the previous one. In particular, he wished to give evidence as to the position of the candle pines as it appeared that the location of the stumps had been relied on by the Dwyers in support of their argument (and apparently accepted by the magistrate) that the fence had been put back in the position of the old fence. Otherwise the original fence would have run through the centre of a stump which, on the defence case, would have been physically impossible. Mr Knox submitted, however, that the Dwyers had been negligent in failing to have a survey to ensure the new fence was placed in the correct position. On that basis, Mr Knox maintained that the magistrate should not have required the plaintiffs to bear one half of the cost of the valuation required for the purposes of assessing the amount of compensation payable by the Dwyers to Mrs Knox. Mr Knox did not, however, identify any other matter which might have led the magistrate to reach a different conclusion from that which he has made in ordering payment of compensation in lieu of removal of the fence. Mr Knox agreed that the magistrate was correct in his comments that there would be a substantial interference with the garden of both parties if the original agreement requiring removal of the fence remained. Mr Knox said:

"If the fence is moved back on to the line, there will be substantial earthworks, it's not a simple matter of just re-locating the garden. I agree with the magistrate, it's a substantial job."

Even if Mr Knox was able to establish that the Dwyers had not erected the fence in the same place as the original one, I do not think that would affect the order of joint sharing of the cost of the valuation. Such an order is fairly typical when the court orders an independent valuation as it is designed to reduce the costs which would otherwise be incurred by each party in getting separate valuations. The penalty imposed upon the Dwyers by reason of their failure to erect the fence on the correct boundary is the order for compensation that they will now be obliged to pay.

At the end of the day, Mr Knox' real complaint about this matter seems to be that the order made by the magistrate with respect to the fence has created uncertainty for the future. He postulated problems which might occur in the event of a future purchaser of either property wishing to build and being confronted by a fence erected on the incorrect boundary. That might well be so, but any future problems can only be a matter of speculation. The magistrate has made orders which he was empowered to make. Mr Knox has failed to demonstrate any basis for interfering with them. I am not persuaded that there is any basis for the magistrate to desist from the further hearing of this matter. In my opinion, the appeal should be dismissed.