Minifie v Maxwell

Decision At First Instance

1. Senior Member Boyce made a decision on 12 September 2019 and provided reasons.
2. Senior Member Boyce relevantly held: 1. Maxwell had complied with the order of Senior Member Charles to obtain and provide to Minifie a quotation from a licensed fencing contractor within the time stipulated (Order 4 of the orders of Senior Member Charles) and Minifie had failed to comply with the orders by failing to obtain and provide to Maxwell a quote by a licensed fencing contractor; and then constructing a replacement fence in a manner and position that prevented Maxwell constructing a fence in compliance with the orders of Senior Member Charles and frustrated practical compliance with such orders. 2. The proceedings had been renewed within 12 months of the date upon which the orders were to be complied with under Sch 4 Cl. 8 of the NCAT Act. 3. The Tribunal had jurisdiction in the renewal proceedings; 4. Under Sch 4 Cl. 8 of the NCAT Act, the Tribunal had the power to make any order it could have made in the original proceedings; 5. Under the DF Act, there was no power to make a standalone order that a fence be demolished, but such an order could be made if the Tribunal was satisfied the fence constructed by Minifie was not a sufficient dividing fence so as to clear a fence line for the purpose of constructing a replacement dividing fence. 6. The fence constructed by Minifie was not a sufficient dividing fence; 7. The appropriate replacement dividing fence was a fence of the type, style and location as the fence identified in the orders of Senior Member Charles; 8. Minifie was to demolish the fence constructed on her land by a certain date, and if she failed to do so, Maxwell could demolish the fence. Maxwell was to obtain an updated quote from All Hills Fencing; provide a copy of the quote to Minifie; and then engage the licensed contractor to construct a fence on the common boundary of the properties of the type, style and height of fence as previously ordered by Senior Member Charles (with slight variation of the previous orders to provide greater clarity) by 22 December 2019. Maxwell was to pay the fencing contractor. Minifie was to reimburse Maxwell for half the cost of the fencing work, and if she failed to do so, Maxwell could obtain a money order against Maxwell from the Tribunal; 9. By reason of s 27 (1) of the NCAT Act, Senior Member Boyce had no power to deal with the issue of contempt that allegedly arose from Minifie's actions. The issue of contempt that allegedly arose from the actions of Minifie was referred to the President of the Tribunal for consideration.

Jurisdiction-Internal Appeals

1. Under s 80 of the NCAT Act, a party may appeal to the Appeal Panel in an internal appeal from an error of law as a matter of right. In respect of errors other than errors of law, the appellant must satisfy the Appeal Panel that leave to appeal should be granted under Cl 12 Sch 4 of the NCAT Act on the basis that a "substantial miscarriage of justice" had occurred due to: (a) the decision of the Tribunal under appeal was not fair and equitable; or (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 the proceedings under appeal were being dealt with).
2. The principles as regarding whether or not leave to appeal should be granted under Cl 12 Sch 4 of the NCAT Act were set out by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [76]-[84].
3. Under r 25 (4) (c) of the Civil and Administrative Tribunal Rules 2014 (NSW) ('the NCAT Rules') the time period to file an internal appeal in the circumstances of this matter is 28 days from the date the appellant was notified of the decision or given reasons for the decision (whichever is the latter).
4. The appeal in this matter has been filed within the limitation period under r 25 (4) (c) of the NCAT Rules; the Notice of Appeal having been filed on 3 October 2019.

Grounds of Appeal

1. Minifie filed Amended Grounds of Appeal that identified 11 grounds of appeal. At the hearing before the Appeal Panel, it was submitted that all the alleged errors were errors of law, and Minifie did not seek to invoke Cl. 12 Sch. 4 of the NCAT Act.
2. A number of the grounds of appeal were repetitive, with only fine distinctions between them. Section 36 (3) of the NCAT Act imposes a duty on parties and their representatives to assist the Tribunal to achieve the just, cheap and efficient resolution of the real issues in dispute. Prolixity of grounds of appeal is of no assistance to the Appeal Panel, as an extravagant or unnecessary number of grounds of appeal fails to assist facilitation of the real issues in the appeal: Salmon v Osmond [2015] NSWCA 42 at [35]. Further, as Ipp JA stated in Ohlstein v E & T Lloyd [2006] NSWCA 226 at [61]: "An extravagantly excessive number of causes of action, or grounds of appeal, or particulars of negligence, are often a sign of serious problems with the health of the case being advanced. At the very least, they demonstrate a lack of appropriate consideration in formulating the issues and are obstacles in the path of justice. Apart from causing unnecessary delay and costs, the scattergun approach obscures the true issues, camouflages the pleader's best points, and unnecessarily complicates the task of the judge."
3. If grounds of appeal are prolix, unnecessary or repetitive, the grounds may be summarised by an appellant court (or the Appeal Panel) to condense the grounds into appropriate issues for consideration: Sze Tu v Lowe [2014] NSWCA 462 at [101]-[106].
4. We summarise the grounds of appeal as follows: 1. The Tribunal had no jurisdiction to consider the renewal proceedings, because Maxwell had never complied with Order 4 of Senior Member Charles. The document Maxwell provided to Minifie was an "estimate" and not a "quote", and the Senior Member erred by finding it was a "quote". 2. The Tribunal had no power to take "judicial notice" of how fencing contractors express documents, which affected the finding that the All Hills Fencing document dated 21 September 2017 was a "quote"; and Minifie was not given an opportunity to made submissions on the opinion of Senior Member Boyce in that regard. 3. There was no evidence to support the finding that Minifie had erected a fence on her land to frustrate compliance with the orders of Senior Member Charles, or that Minifie had intentionally defied the orders. 4. The Tribunal erred by considering whether the fence on Minifie's land was a sufficient dividing fence as of the date of the hearing before Senior Member Boyce in August 2019. Rather, it was required to consider the state of the fence in the original proceedings before Senior Member Charles. 5. A sufficient dividing fence had been constructed on her land by Minifie, and there was no jurisdiction under the DF Act to order its removal. 6. The Tribunal failed to take into account the privacy concerns of Minifie, as required by s 4 (c) of the DF Act. 7. The Tribunal erred by making orders that Minifie remove the fence she had constructed on her own land, when Maxwell had not served a fencing notice under s 11 of the DF Act.

Ground 1-Jurisdiction of the Tribunal

1. The renewal provisions in respect of the Consumer and Commercial Division of the Tribunal are contained in Cl 8 Sch 4 of the NCAT as follows: 8 Renewal of proceedings in respect of certain Division decisions (1) If the Tribunal makes an order in exercise of a Division function in proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal. (2) If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with. (3) The provisions of this Act apply to a notice lodged in accordance with subclause (2) as if the notice were a new application made in accordance with this Act. (4) When proceedings have been renewed in accordance with this clause, the Tribunal: (a) may make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined, or (b) may refuse to make such an order. (5) This clause does not apply if: (a) the operation of an order has been suspended, or (b) the order is or has been the subject of an internal appeal.
2. The provisions of Cl 8 Sch 4 of the NCAT Act are "an additional, simple and practical method of enforcing, and promoting timely compliance with, Tribunal orders": Johnson v Dibbin; Gatsby v Gatsby [2018] NSWCATAP 45 at [83]; Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98 at [26] ('Vasudevan').
3. In making orders that are "appropriate" in renewal proceedings, the Tribunal may have regard to the orders originally made; the circumstances of non-compliance with those orders; the fact of the renewal application; and all relevant circumstances whether they occurred before or after the time the matter was originally determined: Vasudevan at [34]-[35]. In Vasudevan, the Appeal Panel stated at [35]: …A renewal application is, however, designed to deal with a situation where there has been non-compliance with the original order that the Tribunal thought was appropriate when the matter was first determined. The circumstances will inevitably have changed since that time, if for no other reasons than because there has been non-compliance with the order that had been made. What was appropriate originally may well not be appropriate at the time of the hearing of the renewal application. To limit the orders that could be made on renewal to those that would have been appropriate when the matter was originally determined would be likely to prevent the Tribunal from doing justice between the parties, having regard to the non-compliance with the original order and to any other circumstances that had changed materially since the proceedings were originally determined. This would render the right to renew proceedings ineffective in a significant number of cases.
4. The Tribunal has a wide discretion in renewal proceedings to determine what are appropriate orders, including the power to make orders that could not have been made in the original proceedings because there was no power to make a particular order at that stage, but such a power has been enlivened by subsequent events: Vasudevan at [41]-[43]; Bondarek v NSW Land and Housing Corporation [2018] NSWCATAP 299 at [43]-[45]; [54] ('Bondarek').
5. In Bondarek, the Appeal Panel held that determination of what are "appropriate" orders in a renewal application does not involve re-hearing the original proceedings. The Appeal Panel stated at [44]-[45]: This interpretative assistance reinforces the purpose, object and context of the renewal power. It is not simply an aid to enforce the Tribunal's existing orders as clause 4(a) makes clear in its reference to "make any other appropriate order". There is no restriction in the clause to the existing material before the Tribunal or its existing findings on that material. Rather, it is to consider what to do next given a non-compliance, but not to rehear the substantive merits already determined, and to do that on the basis of material put forward by the parties relevant to the issue of what to do next. As was said in Akratos v Papadopoulos [2016] NSWCATAP 139 at 36: the purpose of the renewal proceedings was to consider, in light of the fact that the original order was not complied with, what other appropriate orders it could have made when the matter was originally determined and not to reconsider the substantive merits of the respondent's building claim.
6. By reason of the operation of Cl 8 (1) and (2) of Sch 4 of the NCAT Act, for the Tribunal to have jurisdiction: (i) the party bringing the renewal application must be a "person in whose favour" the order in the original proceedings was made; and (ii) the renewal proceedings must be filed in the Tribunal within 12 months of the "end of the period" in which the order (or orders) in the original proceedings was to be complied with..
7. In the proceedings before Senior Member Boyce, Minifie argued that the document from All Hills Fencing dated 21 September 2017 was not a "quote" but an "estimate". Accordingly, it was argued before Senior Member Boyce that Maxwell had not complied with Order 4 of Senior Member Charles (as subsequently extended); and that Maxwell could not renew the proceedings because performance of the fencing work contained in the orders of Senior Member Charles was contingent upon Maxwell serving Minifie with a "quote".
8. The document from All Hills Fencing contained the words "Quotation No: Q12566" ; set out the first part of the fence as 6m of Hardwood Flat Top Picket Fence with Steel Post at a height of 0.9 m and a cost of $1,550; and the second part of the fence to be either 5m of Treated Pine Closed Paling 3 Rail Fence at a height of 1.8m and a cost of $767 or an "option" of a Hardwood Closed Paining 2 Rail Fence at the same height and length at a cost of $830. The document contains following words: "Note: -We have provided you with an estimate. If this price is within your budget and your would like to book the work. Please (sic) contact our office to organize a site inspection to finalize your quote. This price is based on all works to be done together, prices are subject to change".
9. The document also states: "Quote valid for 30 days".
10. Senior Member Boyce dealt with the issue of whether the document was a "quote" in accordance with the orders of Senior Member Charles at paragraph [29] of the reasons as follows: "On considering the quote by All Hills, the Tribunal is satisfied that the quote conforms with the intention of Order 4. The Tribunal has judicial notice that fencing contractors interchange the words of the quote and estimate when making submissions for fencing work. The Tribunal is also on notice that fencing work by its nature is not regarded as a perfect science. Fencing contractors normally frame their costing for fencing work in terms that allow for unexpected obstacles they may experience in establishing subsurface footings for fences, such as sub surface rock and the need to core drill holes rather than dig holes. Despite Mr Plumb's exhaustive examination of the meaning of the word "quote" compared to the word "estimate", the Tribunal is satisfied that the All Hills Quote is a quote and complies with Order 4".
11. Minifie submits that Senior Member Boyce made an error of law, because there is a legal distinction between a "quote" and an "estimate". Minifie relied upon Kyren Pty Ltd v Built Projects Pty Ltd [2006] SASC 204; Hayward v Timilty [2009] NSWDC 54; and Manfate Pty Ltd v Krahe & Krahe (No 1) [2016] NSWDC 70 as authorities for the proposition that a "quote" is a fixed price for which a person is prepared to perform identified work, and is binding on the parties if accepted; while an "estimate" is a calculated guess as to the cost of proposed work and is flexible.
12. Interpretation of court or Tribunal orders is an objective exercise. The plain and ordinary meaning of the words is the starting point. If the words are ambiguous or susceptible of more than one meaning, extrinsic materials such as the reasons for decision may be taken into account to assist in defining the meaning of the words: Athens v Randwick City Council [2005] NSWCA 317; (2005) NSWLR 58 at [29]; [135]-[140]; Ross v Lane Cove Council [2014] NSWCA 50 at [28]-[31] (although in Ross the Court of Appeal did not express a concluded view about whether ambiguity was essential before extrinsic materials could be considered).
13. In the proceedings before Senior Member Boyce, Minifie made submissions that an "estimate" is not a "quote".
14. However, the Macquarie Dictionary (2nd ed. 2010) defines "quote" as follows: "…Commerce a. to state (a price). b. to state the current price of. 6…"
15. Order 4 of Senior Member Charles did not stipulate that Maxwell had to provide Minifie with a "final quote". It was sufficient if a "quote" from a fencing contract was provided within the relevant time period.
16. Assessed objectively, the document of All Hills Fencing dated 21 September 2017 is a "quote" within the meaning of Order 4 of Senior Member Charles, and there is no error of law in the factual finding made by Senior Member Boyce that the document was a quote. The document contains a quotation number. It identifies the scope of works and identifies prices for the works identified. The reference in the document to the price being subject to a "site inspection"; that "prices are subject to change"; and use of the word "estimate" does not transform the document into anything other than a quote from a licensed fencing contractor.
17. The authorities relied upon by Minifie in respect of the distinction between a "quote" and an estimate are not authority for the proposition that the document from All Hills Fencing dated 21 September 2017 is not a quotation. Only extracts of parts of the authorities relied upon by Minifie were provided to the Appeal Panel at the hearing. However, the relevant authorities must be read in their entirety to establish their applicability to the circumstances of this case.
18. Kyren Pty Ltd v Built Projects Pty Ltd [2006] SASC 204 was an appeal to the South Australian Supreme Court from a Magistrates Court decision. The dispute arose out of a contractual arrangement between the parties. A project manager (Build Projects) had sued a builder (Kyren) for unpaid work. There was a dispute as to whether a facsimile sent by Build Projects prior to the commencement of work was an "estimate" (in the sense that it was not an offer to perform all of the work for a fixed price) or a "quote" (in the sense of an offer to perform all of the work for a fixed price). The South Australian Supreme Court held that there was no error by the Magistrate in regard to a factual finding on the evidence that the reference to "estimate" in the facsimile was not an offer to perform all of the work for a fixed price.
19. Hayward v Timility [2009] NSWDC 54 was a dispute between a home owner and a builder in respect of residential building work under the Home Building Act 1989 (NSW). The parties had signed a written contract, which stipulated that the contract was a "costs plus" contract (i.e. the builder could charge for the cost of all labour and materials, plus a percentage profit margin; with there being no ceiling on the contract price). The homeowner unsuccessfully argued that the contract was in substance a "fixed price" contract, because the builder had referred in a document prior to the signing of the contract that the builder "estimated" the total cost was likely to be in the range of $350,000 to $375,000. In this context, Williams DCJ at paragraph [43] referred to the difference between an "estimate" and a "quote". As the parties had subsequently signed a written "costs plus" contract, the homeowner's argument that they had "overpaid" the builder because the actual cost exceeded the "estimate" was rejected.
20. Manfate Pty Ltd v Krahe & Krahe (No 1) [2016] NSWDC 70 was a building dispute involving construction of a restaurant; a garage; and a residence by Manfate Pty Ltd on the land of Mr and Ms Krahe. There was no written contract between the parties. The relationship between the parties was "informal". The builder sought payment for work performed, either under contract or on a quantum meruit basis. The court held that there was no agreement as to price in the oral contract between the parties, but that the parties had agreed that the builder would be paid for the cost of labour and materials, without any profit margin (para [103]). In the context whether, assessed objectively, the parties had agreed to a fixed price, Neilson DCJ referred to authorities dealing with the difference between an "estimate" and a "fixed quote" at paras [13]-[15].
21. The authorities referred to by Minifie deal with the issue of the objective interpretation of what are the terms of a contract. They are not analogous to the task of Senior Member Boyce in determining whether the document from All Hills Fencing dated 21 September 2017 was a "quotation" within the meaning of Order 4 made by Senior Member Charles. They are also not authority for the proposition that any document that contains both the words "quotation" and "estimate" is not a "quote".
22. No error of law is established in respect of the factual finding made by Senior Member Boyce that the document of All Hills Fencing dated 21 September 2017 was a "quotation" within the meaning Order 4 of Senior Member Charles. Accordingly, Maxwell complied with Order 4.
23. Minifie's refusal to accept the document of All Hills Fencing dated 21 September 2017 as a quotation, and then to construct her own fence on her own land but in very close proximity to the boundary prevented Maxwell from constructing a fence that complied with the orders of Senior Member Charles.
24. Accordingly, there had been an order in Maxwell's favour, and the order "had not been complied with" by reason of the actions of Minifie. The date of compliance with the orders to complete construction of the fence made by Senior Member Charles was 31 January 2018. As Maxwell had filed renewal proceedings on 25 January 2019, Maxwell was within the 12 month limitation period in Cl 8 (2) of Sch 4 of the NCAT Act, because the "end of the period" in which the orders to construct the fence were to be complied with was 31 January 2018, not the date Minifie had rejected the document of All Hills Fencing; nor the date that Minifie constructed the fence on her land.
25. Minifie further submits that the Tribunal had no jurisdiction in the renewal proceedings, because Maxwell had not served a fencing notice in accordance with s 11 of the DF Act. That submission erroneously conflates the jurisdiction of the Tribunal in the original proceedings before Senior Member Charles with the jurisdiction of the Tribunal in the renewal proceedings before Senior Member Boyce. Jurisdiction in the renewal proceedings arises from the fact that orders had been made in favour of Maxwell and the failure of Minifie to comply with her obligations under the orders gave the Tribunal jurisdiction under Cl 8 Sch 4. There was no jurisdictional necessity for Maxwell to serve a fencing notice prior to commencement of the renewal proceedings.
26. No error of law has been established in respect of the findings of Senior Member Boyce on the issue of jurisdiction under Cl 8 Sch 4 of the NCAT Act arising from the quotation that had been provided from Minifie to Maxwell.

Ground 2-Judicial Notice

1. Minifie submitted that on the authority of Aytugrul v The Queen [2012] HCA 15, the common law doctrine of judicial notice no longer exists after the enactment of s 144 of the Evidence Act 1995 (NSW) and Senior Member Boyce took "erroneous judicial notice" when he referred to the manner in which fencing contractors expressed quotations in para [29] of the reasons for decision.
2. The submission based on s 144 of the Evidence Act 1995 (NSW) is fallacious, because Section 38 (2) of the NCAT Act states: 38 Procedure of Tribunal generally ... (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) Despite subsection (2): (a) the Tribunal must observe the rules of evidence in: (i) proceedings in exercise of its enforcement jurisdiction, and (ii) proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and (b) section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings. Note. Section 67 also prevents the compulsory disclosure of certain documents in proceedings in the Tribunal that would, in proceedings before a court, be protected from disclosure by reason of a claim of privilege. (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. …
3. Although the Evidence Act 1995 (NSW) does not apply in NCAT (subject to s 38 (3) of the NCAT Act, which is inapplicable in the circumstances of this matter), rules of evidence are relevant to the operation of procedural fairness; and the Tribunal has adopted the basic common law principles with regards to the essential characteristics of adversarial litigation, including principles pertaining to the admission of evidence: Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon [2017] NSWCATAP 185 at [37]; Chi Building Pty Ltd v Wedgewood [2016] NSWCATAP 64 at [41]. Whilst s 144 of the Evidence Act 1995 (NSW) does not apply in the Tribunal, the principles which underly it based upon common knowledge and judicial notice are applicable to the extent they bear upon procedural fairness.
4. The relevant authorities regarding matters of common knowledge and matters within the principle of judicial notice are summarised in Forrest v NSW Land and Housing Corporation [2016] NSWCATAP 156 at [29]-[32]; and Health Care Complaints Commission v Schmidt [2016] NSWCATOD 145 at [93]-[104].
5. In essence, factual findings must be made on the evidence, not on the opinions of the judicial officer in the absence of any evidence, no matter how experienced the judicial officer. This is a distinct issue from making factual findings when there is evidence to support the finding, and the process of drawing inferences from the available evidence. The exceptions are matters of common knowledge and matters to which judicial notice can be taken, but they are matters limited in scope and usually not matters of controversy or factual dispute.
6. A court or Tribunal may take judicial notice of a fact where "it is so generally known that every person may be presumed to be aware of it" (Ohlstein at [150]). Whether or not a court or Tribunal is a specialist court or Tribunal is relevant. However, it is an error of law where there is no evidence to support the factual finding; and it may be a denial of procedural fairness where a finding is made based upon the decision makers own purported knowledge or understanding of matters that do not form part of the evidence. If a judicial officer intends to rely upon their specialist knowledge, this issue should be raised with the parties during the hearing so they have an opportunity to make submissions.
7. We accept that Senior Member Boyce did not raise with the parties at the hearing that he had a view on how fencing contractors normally express quotations.
8. However, we are not satisfied that the reference to the manner in which fencing contractors normally express quotations is an error of law.
9. The comments after the first sentence in para [29] of the reasons are obiter dicta. The finding is contained in the first sentence. That finding, when the reasons are read fairly and in context, is based upon the words of the All Hills Fencing document in the context of the words used in Order 4 of the orders made by Senior Member Charles. We have expressed previously that an objective interpretation of the document is that it is a "quotation" within Order 4 of the orders made by Senior Member Charles. Comments made by Senior Member Boyce in paragraph after the first sentence of paragraph [29] of the reasons regarding the 'normal' manner in which fencing contractors express their quotations are immaterial to the factual finding that the document, when assessed objectively, is a "quotation" within Order 4 of the orders made by Senior Member Charles.
10. The Appeal Panel stated in My Stone Tiles Pty Ltd v Ell; My Stone Tiles Pty Ltd v Allen [2018] NSWCATAP 7 at [70]-[72]: The respondents submit that even if there was a denial of procedural fairness, there has been no practical injustice as the ACL s 54 basis of liability, as found by the CCD decision is sound. CSR Limited V Eddy [2008] NSWCA 83 is relied upon. The decision makes it clear that in cases relating to procedural unfairness, practical injustice must be established. That proposition is not in doubt. In Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Gleeson CJ stated at paragraph 37: 'Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.' In Stead v State Government Insurance Commission (1986) 161 CLR 141 the plurality stated at paragraphs 9 ,10 and in the first sentence of 11: 'That general principle is, however, subject to an important qualification which Bollen J. plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility. For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial. Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. For the reasons stated, this ground of appeal has not been made out.
11. If there has been a denial of procedural fairness, the key issue is whether the denial of procedural fairness deprived the party of the possibility of a successful outcome. Finding that a properly conducted application would have inevitably produced the same result is not done lightly: Stevanovski v CLK Plumbing Pty Ltd [2017] NSWCATAP 180 at [30]-[31].
12. However, we are satisfied that, irrespective of the failure of Senior Member Boyce to raise at the hearing that he had a view about how fencing contractors normally express quotation documents involving the use of the words "quote" and "estimate" interchangeably, the failure of Minifie to be given an opportunity to make a submission on this purported knowledge of the Senior Member is not material to the finding that the document of All Hills Fencing falls within the meaning of the word "quotation" in Order 4 of the orders of Senior Member Charles.
13. Even if Minifie had made a submission (or made a successful application to adduce further evidence) there is no possibility that the finding in the first sentence of paragraph [29] of the reasons would have been different, or that the outcome would have been different. An objective construction of the document itself is sufficient evidence to make the factual finding that it was a "quotation".

Ground 3-No Evidence to Support Finding That Minifie Had Acted Intentionally to Frustrate the Orders of Senior Member Charles in Regard to Construction of the Replacement Fence

1. Minifie submits that Senior Member Boyce had made findings in the decision which were, in essence, findings of contempt and (as the Senior Member had also stated in the decision) the Tribunal had no power to make such findings by reason of the operation of s 27 (1) and s 73 of the NCAT Act. The focus of this submission are findings at paragraphs [40 (10)] and [45].
2. Paragraph 40 (10) of the reasons stated: "It is reasonable for the Tribunal to infer that the timing, type and location of the fence built by Ms Minifie and the course of action she took was to frustrate compliance with the Orders. Such a course of action is in defiance of the Tribunal's Orders".
3. Paragraph [45] of the reasons stated: "However, the fence has been erected to frustrate the orders of the Tribunal . It has been erected in a way that satisfies Ms Minifie's chosen type of fence as to height and partially in the style that she proposed despite the decision of the Tribunal. Its type and style does not take into account Mr and Ms Maxwell's concerns that were taken into account by the Tribunal in coming to the decision it did. There is a safety concern that it does not provide a barrier against children falling the between part of the fence and the lip of the rock face and outcrop".
4. Reasons must be read fairly and in their full context. As the Appeal Panel held in Vasudevan and Bondarek, in the renewal proceedings Senior Member Boyce had to consider (and make findings) on whether the orders of the Tribunal in favour of Maxwell (including the order that fencing work in the type; style and height found to be appropriate by Senior Member Charles) had not been complied with by reason of the actions of Minifie; and what were appropriate orders in the renewal application. Consideration of what was appropriate included all relevant actions of Minifie.
5. The actions of Minifie included (i) the rejection of the quotation obtained by Maxwell; (ii) immediately after rejecting the quotation, constructing a fence of the type, style and height that Minifie had unsuccessfully sought at the contested hearing before Senior Member Charles; and (iii) positioning the fence in very close proximity to the boundary but on Minifie's land. Mr Plumb's evidence at the hearing before Senior Member Boyce was that the fence was "carefully constructed" in a manner such that Mr Plumb believed Maxwell could still construct a fence of the lower height as ordered by Senior Member Charles immediately next to the higher fence constructed by Minifie if he chose to do so (T:18: 449).
6. Considering such evidence, and in circumstances where Senior Member Boyce had attended a view with the parties, there is no error in the findings of Senior Member Boyce that the actions of Minifie were deliberate and with knowledge of the orders made by Senior Member Charles. There was no error in the factual findings made that the fence constructed by Minifie was on the fencing line between the properties, even if it was slightly on the land of Minifie. There was no error in the factual findings that the practical effect of the construction of the fence by Minifie caused non-compliance with the orders of Senior Member Charles.
7. In this context, the reference by Senior Member Boyce to the fence being constructed to "frustrate the orders" of Senior Member Charles is not a finding of contempt. It is a comment in the context of the Senior Member Boyce finding that the practical effect of the construction of the fence by Minifie was that the orders of Senior Member Charles could not be complied with by Maxwell due in particular to the height and position of the fence erected by Minifie. The reference to "defiance" is simply a reference to the fact that Minifie was aware of the orders of Senior Member Charles, and acted in a deliberate way to construct a fence of the type and height she had unsuccessfully sought in the proceedings before Senior Member Charles, but located on her land very close to the boundary.
8. The findings made by Senior Member Boyce are not findings of contempt. In their context, they are findings that the actions of Minifie have caused non-compliance with the orders of Senior Member Charles. Whether or not such actions constitute contempt of the Tribunal (Bott v NSW Land and Housing Corporation [2017] NSWCATCD 88 setting out the relevant principles) is a separate issue and a matter that Senior Member Boyce correctly held he had no jurisdiction to determine.
9. There was clear evidence to support the findings of Senior Member Boyce regarding the non-compliance with the orders of Senior Member Charles and such evidence was relevant to what were "appropriate orders" in the renewal application. No error of law has been established in this regard.

Ground 4-Whether a 'Sufficient Dividing Fence' Was to Be Considered as of the Circumstances in the Original Proceedings; or the Condition in the Renewal Proceedings?

1. Minifie submits that Senior Member Boyce needed to consider whether there was a sufficient dividing fence as at the date of Senior Member Charles made orders, not at the date of the hearing before Senior Member Boyce.
2. Such a submission is clearly inconsistent with the principles applicable to renewal proceedings under Cl 8 Sch 4 of the NCAT Act enunciated in Vasudevan and Bondarek. Renewal proceedings are not a re-hearing of the original application, and there is no error by Senior Member Boyce in considering the events pertaining to the non-compliance of the orders of Senior Member Charles, and the type, height, style and location of the fence constructed by Minifie.

Ground 5-The Fence Constructed by Minifie on Her Land Was a Sufficient Dividing Fence

1. Minifie submits that as she had constructed a fence on her land, there was a "sufficient dividing fence" and unless there is not a "sufficient dividing fence" under s 4 of the DF Act, there was no jurisdiction to make orders in the renewal proceedings: Larney v Johannson [2013] NSWCA 409 ('Larney v Johannson').
2. Section 4 of the DF Act states: 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 immediately before the repeal of that Act.
3. In respect of s 4 of the DF Act, the Appeal Panel stated in Purcell v Chadwick [2018] NSWCATAP 250 ('Purcell') at [22]-[35]: Meaning of "sufficient" The Tribunal does not have jurisdiction to make an order under the Act unless any existing fence is found to be insufficient: see Alwiah v Watts & Anor [2004] NSWSC 948 approved in Larney v Johannson [2013] NSWCA 409. The term "sufficient" is protean. In determining what is a "sufficient dividing fence", s 4 of the Act provides: ... The section provides a list of factors as part of an inclusive definition, and otherwise requires the Tribunal "to consider all the circumstances of the case when determining the standard for a sufficient dividing fence for the purposes of [the Act]". It is inappropriate to attempt to prescribe all the circumstances which might be relevant. However, as is evident from the list of factors in the Act, they include a consideration of the existing fence, the purposes for which "the adjoining lands are used or intended to be used", and the "privacy or other concerns of the adjoining landowners". Taken together, it is clear that the nature of the adjoining land, and how a landowner wishes to use and enjoy their land, are relevant factors in determining the sufficiency of a fence. The question of whether a particular fence is sufficient is one of degree. As recognised by Adams J in Larney v Johannson [2012] NSWSC 1297 at [11], a fence might be sufficient "but some fences might be more sufficient than others". While his Honour was considering what might be a sufficient fence for the purpose of an order under s 14 of the Act, his Honour's comments are nonetheless relevant to examining the sufficiency of an existing fence. In its reasons for decision, the Tribunal said on page 2: Even if the fence is not on the exact boundary line, this is not a factor which establishes that a fence is not sufficient. The fence does not appear damaged at all from the photos; it looks sufficiently upright and runs the full length of the boundary. The applicant agreed with the proposition that the panels and the railings are in good condition. The appellant contends that the Tribunal was in error in concluding that the location of the fence - more particularly whether it was on the boundary line - was not a relevant factor in determining whether an existing fence is sufficient. We agree. There are three reasons for our view. First, s 4 provides an inclusive definition of "sufficient" for the purposes of the Act. One of those purposes is to determine whether the existing fence is sufficient or whether the jurisdiction of the Tribunal to make an order to carry out fencing work is enlivened because the existing fence is insufficient. As we have said above, ss 4(b) and (c) make clear that the existing and prospective use of the land and privacy and other concerns of the adjoining landowners are specific considerations which the Act identifies as being relevant to determining the question of sufficiency. Secondly, the Act expressly enables the Tribunal to have regard to the "existing dividing fence (if any)", an expression that is not limited to the physical properties of the fence, but also includes its location and purpose. Thirdly, the use of the expression "in all the circumstances" would make it anomalous to construe the word "sufficient" in a manner which would exclude from consideration a fence encroaching on the adjoining neighbour's property that inappropriately restricted the use or enjoyment of the land of an adjoining landowner.
4. As the Appeal Panel held in Purcell, whether a fence is a sufficient diving fence is sufficient in "all the circumstances of the case" is of wide ambit, taking into account all relevant circumstances. The fact that a fence is not on the boundary line does not, of itself, render the fence insufficient, but it is a relevant factor to consider.
5. Senior Member Boyce made findings on the evidence that the fence erected by Minifie was not a sufficient dividing fence. Senior Member Boyce considered relevant circumstances including the previous orders made by Senior Member Charles; the fact that the parties had raised privacy issues before Senior Member Charles; the fact that the fence constructed by Minifie in September and October 2017 did not comply with the orders of Senior Member Charles; the fact that the fence was not located on the common boundary between the properties; and that there was a safety concern because the fence erected by Minifie did not provide a barrier against children falling between part of the fence and the lip of the rock face and outcrop.
6. No error of law has been established regarding the factual findings made by Senior Member Boyce that the fence constructed by Minifie was not a "sufficient dividing fence" under s 4 of the DF Act.
7. After finding that the fence constructed by Minifie was not a sufficient dividing fence within the meaning of s 4 of the DF Act; the Tribunal clearly had powers under s 14 of the DF Act (and by reason of the operation of cl 8 (2) sch 4 of the NCAT Act; powers in the renewal proceedings) to make orders as to fencing work.
8. Section 14 of the DF Act states as follows: 14 Orders as to fencing work (1) The Local Court or the Civil and Administrative Tribunal may, in respect of an application under this Act, make an order determining any one or more of the following: (a) the boundary or line on which the fencing work is to be carried out, whether or not that boundary or line is on the common boundary of the adjoining lands, (b) the fencing work to be carried out (including the kind of dividing fence involved), (c) the manner in which contributions for the fencing work are to be apportioned or re-apportioned or the amount that each adjoining owner is liable to pay for that work, (d) which portion of the dividing fence is to be constructed or repaired by either owner, (e) the time within which the fencing work is to be carried out, (f) the amount of any compensation (in the form of an annual payment to either of the adjoining owners) in consideration of loss of occupation of any land, (g) that, in the circumstances, no dividing fence is required in respect of all or part of the boundary of the adjoining lands. (1A) Despite subsection (1), no order may be made for the carrying out of fencing work on a declared area of outstanding biodiversity value under the Biodiversity Conservation Act 2016 without the consent of the Environment Agency Head (within the meaning of that Act). (2) The occupation of land on either side of a dividing fence, as a result of an order determining that fencing work is to be carried out otherwise than on the common boundary of the adjoining lands, is not taken to be adverse possession as against the owner or to affect the title to or possession of the land, except for the purposes of this Act.
9. "Fencing work" is defined in s 3 of the DF Act as: fencing work means: (a) the design, construction, replacement, repair or maintenance of the whole or part of a dividing fence, and (b) the surveying or preparation of land (including the trimming, lopping or removal of vegetation) along or on either side of the common boundary of adjoining lands for such a purpose, and includes: (c) the planting, replanting and maintenance of a hedge or similar vegetative barrier, and (d) the cleaning, deepening, enlargement or alteration of a ditch, embankment or watercourse that serves as a dividing fence. lease includes a sublease and an agreement for a lease.
10. The Tribunal clearly had power, by reason of the operation of s 3 of the DF Act and s 14 of the DF Act, to make orders that the fence constructed by Minifie be "replaced" by the type, style; height and location of the fence that had been ordered by Senior Member Charles. In the context of making orders regarding the construction of the fence, Senior Member Boyce had the power to order that the fence constructed by Minifie be demolished so that it could be replaced with the fence of the type, style, height and location of the fence that had been ordered by Senior Member Charles. No error of law has been established in respect of the said findings.
11. Arguably, because of the provisions of cl 8 sch 4 and the authorities of Vasudevan and Bondarek it was unnecessary for Senior Member Boyce to make a finding that the fence constructed by Minifie was not a sufficient dividing fence; because once it has been found that Minifie's actions constituted non-compliance with orders of Senior Member Charles (and that the relevant orders not complied with had been made in favour of Maxwell), the Tribunal had the power to made remedial orders under s 14 of the DF Act to put Maxwell in the position that Maxwell should have been if the orders of Senior Member Charles had been complied with by Minifie irrespective of whether or not the fence constructed by Minifie was a sufficient dividing fence.
12. However, it is unnecessary for us to express a concluded view on this issue in circumstances where no error has been established in the findings of Senior Member Boyce that the fence constructed by Minifie was not a sufficient dividing fence within the meaning of s 4 of the DF Act.
13. Minifie's submissions on the issue of jurisdiction place emphasis of the comments of Emmett JA in Larney v Johannson at [64] and [69] that there is nothing in the DF Act to prevent an adjoining owner from erecting a dividing fence on their land contrary to the wishes of the other adjoining owner. However, the facts of Larney v Johannson are very different to the facts of this dispute. In that case, Johannson served a fencing notice under s 11 of the DF Act on Larney and then built a fence on the boundary between her property and the property of Larney at Johannson's sole cost.
14. Larney then, without serving a fencing notice under the DF Act, brought proceedings in the Local Land Board seeking that Johannson remove the fence at her cost; a "finding" that a large boulder on the boundary be considered a sufficient dividing fence; and a "finding" that "the rest of the fence" comply with certain easements and restrictions. The Local Land Board dismissed the application for want of jurisdiction, and Adams J dismissed the appeal. The NSW Court of Appeal then dismissed the appeal from Adams J's decision.
15. The NSW Court of Appeal held that the basis upon which there was no jurisdiction was that Larney had not served a fencing notice under s 11 of the DF Act in respect of fencing work; and in any event the Local Land Board had found that the fence constructed by Johannson was a sufficient dividing fence.
16. At para [69] Emmett JA stated: The Act is concerned only with contribution to the carrying out of fencing work. That term does not include the removal or demolition of an existing dividing fence, except to the extent that its removal may be involved in the replacement, repair or maintenance of an existing dividing fence. There is nothing in the Act that is capable of being construed as conferring on either the Local Court or a local land board jurisdiction to require an adjoining owner to remove or demolish a dividing fence except for that purpose. Even if an adjoining owner in Mr Larney's position, who has received a notice under s 11 requiring him to contribute to proposed fencing work, successfully obtains an order under s 12(2) that that proposed fencing work is not required, there is nothing in the Act that would prevent the other adjoining owner who has served the notice from simply building the fence. Of course, that owner may not be able to obtain a contribution to the cost of the fence that was in excess of what was required. However, the owner who had successfully obtained the order saying that the fence is not required would have no remedy under the Act for removal of the fence.
17. The comment by Emmett JA that the DF Act is "concerned only with the contribution of fencing work" should not be taken out of context and be distinguished on the particular facts of the case, because the provisions of the DF Act involve issues beyond mere contribution between neighbours regarding fencing work, as is clear from the decision in Larney v Johannson itself.
18. In respect of the argument put forward by Larney that he sought "replacement" of the existing dividing fence, Barrett JA stated at [16]-[19]: In the course of his submissions, Mr Angyal SC, counsel for Mr Larney, canvassed a multitude of matters concerning the construction of the Dividing Fences Act 1991. His client's case is, however, doomed to fail on one narrow but vital point. Central to Mr Larney's case is the proposition that, if the whole or a part of an existing dividing fence is demolished so that no fence or other structure remains in the place in which the dividing fence or part previously stood, the demolition constitutes "fencing work" within the s 3 definition because it entails the "replacement" of the whole or part of the fence concerned. No other aspect of the s 3 definition of "fencing work" was relied upon; nor could it be, given that the elements, in addition to "replacement", are "design", "construction", "repair" and "maintenance". The argument is that, in the circumstances outlined, there is "replacement" of the fence by the natural features of the unimproved land from which the fence has been removed - such as the boulder or rock outcrop that played a large part in the facts of this case. As a matter of plain language, the argument is untenable. There can be no "replacement" of a thing unless another thing is put into its place. A paling fence may be replaced by a post and rail fence, a chain wire fence, a barbed wire fence, a brick wall, another paling fence or a structural barrier of some other kind. But unless something is substituted for it, the fence is not replaced at all. The operation that Mr Angyal's client wishes to see characterised as the "replacement" of a fence or part of a fence is in truth the elimination of the fence or part. It follows that no "fencing work", as defined by s 3, was contemplated by Mr Larney's application of 10 December 2011. The Local Land Board therefore had no power to make the order that Mr Larney sought; and his appeal to the Supreme Court under s 19(2) of the Act was rightly dismissed.
19. Meagher JA stated at [9]-[10]: There are two, more fundamental, reasons why the local land board was correct to dismiss Mr Larney's application. The first is that the subject matter of his application for orders under s 14 was not "fencing work" as defined in s 3. That definition includes: "(a) The design, construction, replacement, repair or maintenance of the whole or part of a dividing fence." The work which Mr Larney sought to carry out does not answer any of those descriptions. He does not seek to demolish the existing fence, in whole or part, so as to repair or replace it. The second is that he had not, as required by s 12(2) as a precondition to his entitlement to apply to the local land board for orders under s 14, served a notice on Ms Johannson under s 11 in respect of any "fencing work".
20. It is clear from the Larney v Johannson that under s 14 of the DF Act the Tribunal does not have the power to merely order the demolition of a fence (as Senior Member Boyce correctly found); but it does have the power to order the demolition of an existing fence to replace it with a sufficient dividing fence, if the other relevant provisions of the DF Act are met. However, Larney v Johannson was not dealing with a situation invoking the renewal provisions under Cl 8 Sch 4 of the NCAT Act.
21. The facts of this matter are significantly different to Larney v Johannson. They involve a situation where the Tribunal made orders after a contested hearing between the parties; has made orders regarding what is an appropriate sufficient dividing fence and where it is to be located; and the actions of Minifie have caused non-compliance with the orders of the Tribunal, leading to the Tribunal dealing with the dispute under the auspices of the renewal powers under Cl 8 Sch 4 of the NCAT Act.
22. Senior Member Boyce has not misapplied the principles in Larney v Johannson and no error of law is established in respect of this ground of appeal.

Ground 6-Failure to Take Into Account Privacy Concerns

1. Minifie submits that Senior Member Boyce failed to take into account Minifie's "privacy concerns" as required under s 4 of the DF Act and that para [16] of the reasons "turned a blind eye" to her "concerns".
2. At para [16] of the reasons, Senior Member Boyce refers to the deterioration of the relationship between the parties and that a number of allegations raised at the hearing were not relevant to the renewal proceedings.
3. As was clearly set out by the Appeal Panel in Vasudevan and Bondarek, Senior Member Boyce was not re-hearing the original application. His task, after being satisfied that Minifie's actions had resulted in non-compliance with the orders of Senior Member Charles, was to determine what were appropriate remedial orders to make in the renewal proceedings. The reasons of Senior Member Charles clearly show that Minifie raised her "privacy concerns" in the original proceedings, and they were considered.
4. In the hearing of the renewal proceedings before Senior Member Boyce, the "privacy concerns" of Minifie were raised as a justification for her constructing the fence in September/October 2017. Relevantly, Mr Plumb stated: 1. "I also share the concerns of Ms Minifie in terms of privacy and quiet enjoyment" (T:2:36); 2. "…you'll see in our submissions it says our view that the whole process is intended to be vexatious because it's simply trying to get something in place that will not satisfy Ms Minifie's needs for privacy but appear to be a dividing fence" (T:16:379); 3. "Mr Charles (sic) states at point 16, clause 5 "The privacy concerns of the applicant are taken into consideration (noting that it is available to the applicant to take other measures on her own land to ameliorate such concerns"). That's exactly what Ms Minifie has done" (T:18:445); 4. "What she did was to take other measures on her own land to obtain privacy because the orders of the 28th August did not provide that and whilst it had been intended and it's still intended to appeal those orders, the fact I became extremely ill and was not granted an extension of time, forced her to withdraw the appeal". (T:19:454).
5. It is clear the evidence presented at the hearing before Senior Member Boyce was that Minifie's subjective "privacy concerns" were salient to her justification for constructing the fence in September/October 2017. The substance of such "privacy concerns" was not articulated. The evidence did not raise that there had been any relevant events or occurrences since the orders of Senior Member Charles that raised any different or additional "privacy concerns" than were raised at the hearing before Senior Member Charles.
6. At the appeal hearing, Minifie's Counsel submitted that based upon evidence that Mr Maxwell had given in the Supreme Court matter of Saba v Plumb and Anor [2017] NSWSC 622 (which subsequently went on appeal to the NSW Court of Appeal in Saba v Plumb [[2018] NSWCA 60), Mr Maxwell could see into Minifie's residential premises from his property. However, there is nothing in the materials before us in the appeal to indicate that this had not been raised before Senior Member Charles, nor that it was raised as a new event or concern in the hearing before Senior Member Boyce.
7. Accordingly, there is no error of law in respect of the findings of Senior Member Boyce that the appropriate orders to make in the renewal proceedings were that the fence Minifie had constructed be demolished and replaced by a fence in the type, style and height that had been ordered by Senior Member Charles.

Ground 7-Failure of Maxwell to Serve A Fencing Notice.

1. This issue has been dealt with previously in our reasons. There was no jurisdictional requirement in the renewal proceedings that Maxwell serve a fencing notice under s 11 of the DF Act.

Conclusion

1. None of the grounds of appeal have been established. The appeal is dismissed.
2. A stay of Senior Member Boyce's orders was made by the Appeal Panel on 3 October 2019 until further order of the Tribunal. The stay of the orders is lifted.
3. By reason of the Appeal Panel proceedings and the stay of the orders of Senior Member Boyce dated 12 September 2019, it is appropriate that the Appeal Panel vary the orders pursuant to s 81(1) (a) of the NCAT Act to grant an extension of time for compliance with the orders.
4. We regard it appropriate to vary the orders as follows: 1. Order 1 is extended to 27 March 2020. 2. Order 5 is extended to 20 March 2020. 3. Order 7 is extended to 15 May 2020.
5. Any further application by either party to vary the orders of the Tribunal dated 12 September 2019 in Matters Com 19/04453 and Com 17/25445 in respect of time for compliance or otherwise is to be made in writing to the Tribunal and referred to Senior Member Boyce for determination, or if Senior Member Boyce is not available, a Principal Member of the Tribunal.

Orders 1. The stay of the orders of the Tribunal made on 12 September 2019 in Matter Com 19/04453 and Com 17/25445 is lifted. 2. The appeal is dismissed. 3. Orders of the Tribunal dated 12 September 2019 in Matter Com 19/04453 and Com 17/25445 are varied as follows: 1. Order 1 is extended to 27 March 2020. 2. Order 5 is extended to 20 March 2020. 3. Order 7 is extended to 15 May 2020. 1. Any further application by either party to vary the orders of the Tribunal dated 12 September 2019 in Matters Com 19/04453 and Com 17/25445 in respect of time for compliance or otherwise is to be made in writing to the Tribunal and referred to Senior Member Boyce for determination, or if Senior Member Boyce is not available, a Principal Member of the Tribunal.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 March 2020