This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) against a decision made in the Consumer & Commercial division of the Tribunal on 16 November 2023 when the Tribunal was exercising its jurisdiction under the Dividing Fences Act 1991 (NSW) (the DF Act).
The orders the subject of this appeal may be summarised as follows:
1. The existing timber fence being the boundary fence between (the addresses of the parties), is to be demolished and removed from a point adjacent to the storeroom at the applicant's property to the front boundary (fencing work location).
2. The collapsed stone retaining wall at the fencing work location (of approximately 400 mm in depth and 8.5 m long) is to be removed.
3. A 1.8 metre high timber fence to match the existing fence is to be supplied and installed at the fencing work location.
4. The works referred to in these orders is to be commenced by 31 December 2023.
5. The works referred to in the orders is to be completed by 31 January 2024.
6. The cost of the fencing works referred to in these orders is to be borne solely by the respondent.
7. The fencing work, the subject of these orders, is to be undertaken by a licensed fencing contractor or a licensed builder.
The respondent referred to in the above orders is now the Appellant.
It is necessary to set out some of the background to the proceedings so as to understand the issues raised in this appeal.
The proceedings at first instance were commenced by the Respondent to the appeal filing a dividing fences application. The salient points derived from the application are the following:
1. The application stated that a fencing notice had been served on 27 June 2023.
2. The Respondent sought an order determining which portion of the dividing fence is to be constructed or repaired by either owner and an order determining the time within which the fencing work is to be carried out.
3. The application form stated that the existing dividing fence had been in a satisfactory condition prior to damage caused by excavation works carried out on the neighbouring property for the respondent (now the Appellant). The form also stated that the existing stone retaining wall has collapsed due to the "zone of influence of the excavator" and needs to be removed and rebuilt.
4. The form stated that the scope of work has been included in the "builder's quote in the attached email". Neither party produced a copy of the builder's quote in the appeal, but it was acknowledged by both parties that the amount quoted was $4,250.
On 24 August 2023 the Tribunal made directions for the applicant to provide to the respondent and the Tribunal, documents on which the applicant intended to rely at the hearing and a further direction was made for the respondent to do the same.
It is not clear whether the Appellant complied with the direction to provide the Tribunal and to the Respondent the material upon which he relied in opposition to the Respondent's application. The Appellant says that he did provide documentary evidence and written submissions to the Tribunal on 27 October 2023. The Respondent informs us that he did not receive any such evidence or submissions. Copies of the submissions were not provided to us by the Appellant in these appeal proceedings prior to or during the appeal hearing.
After the hearing of the appeal, the Appellant emailed to the Tribunal a bundle of documents that he said included the evidence and submissions lodged on 27th October 2023. This email was not lodged pursuant to any leave granted by us as the Appeal Panel.
The first instance hearing occurred on 16 November 2023 in the absence of the Appellant. On the following day the orders referred to above were published. They did not include written reasons and there is no suggestion that written reasons were requested by either party.
The Notice of Appeal was lodged on 12 December 2023 and on 12 January 2024 the Tribunal made directions for the preparation of the appeal. This included a direction that the Appellant was to lodge with the Appeal Registry and provide to the Respondent by 2 February the following:
1. all the evidence given to the Tribunal at first instance on which the Appellant intended to rely;
2. any evidence not provided to the Tribunal at first instance in making the decision under appeal on which it is intended to seek leave to rely;
3. the Appellant's written submissions in support of the appeal, and
4. if oral reasons were given and/or what happened at the hearing at first instance is being relied upon by the Appellant in the appeal, a typed transcript of the relevant parts of the hearing, together with a sound recording of the entire hearing.
An order in similar terms, was directed to the Respondent.
Since the directions hearing the Respondent has filed a Reply to Appeal and submissions lodged 14 February 2023, which noted that the Appellant had not lodged the Appellant's submissions as required by the above directions.
On 6 March 2024 the Appellant lodged submissions with the Tribunal. The Respondent stated during the course of the hearing that he had not been served with a copy of those submissions. The Appellant stated that a copy had been served by email but was unable to provide us with a copy of that email. The material referred to above, lodged by the Appellant after the hearing of the appeal did not include evidence of service upon the Respondent.
[2]
Notice of Appeal
The grounds of appeal as set out in the Notice of Appeal may be summarised as follows:
1. The hearing on 16 November 2023 went ahead in the absence of the Appellant. The Appellant had been given permission to appear by telephone or by audiovisual means. The Appellant stated in the Notice of Appeal that he attempted to participate in the hearing but could not do so due to "a lapse in the Tribunal operational process". The notice states that he sent three emails to the Tribunal "signalling" his readiness to participate. We were not provided with a copy of those emails and during the course of the hearing of the appeal, the Appellant could not locate copies of those emails to provide to us. However, after the hearing copy emails were emailed to us. We will say more about these later in these reasons.
2. The second ground of appeal is that the decision was not fair and equitable. The Appellant seeks leave to appeal.
The basis for the submission that the decision was not fair and equitable can be summarised as follows:
1. The fence in question is over 23 years old and has been in "varying states of disrepair since 2013".
2. The Respondent misrepresented the facts to the Tribunal and in particular the Respondent's assertion that works carried out on 4 March 2023 by builders or contractors on behalf of the Appellant caused damage to the fence is inaccurate.
3. A reasonable and fair proposal would be for a new fence to be constructed on the basis that each party pays 50%. Insofar as the retaining wall is concerned the Appellant acknowledged that there is a need for a new retaining wall and that the Appellant is willing to cover the cost of the retaining wall.
The Respondent filed a Reply to Appeal in which the Respondent made submissions concerning the points made in the Notice of Appeal. These included the submission that the fence had been damaged on or about 4 March 2023 due to work conducted on the Appellant's property. The Respondent included evidence that the fence had been installed by Be Smart Fencing pursuant to an invoice dated 30 April 2014. This was provided in support of the proposition that the fence was in a sufficient state prior to the events of 4 March 2023.
From the submissions of the parties the current state of the dispute can be distilled to the following matters:
1. Both parties agree that the fence is not in a sufficient state and requires replacement. The Respondent has a quotation for that work in an amount in the region of $4,250. The Appellant has quotations but these are for the full length of the boundary fence (that is not limited to the portion damaged being the portion the subject of the existing orders).
2. The Appellant is prepared to pay 50% of the cost of the new fence the subject of the existing orders and is also prepared to absorb the full cost of installing a new retaining wall including the removal of what is necessary to construct the new fence.
3. The Respondent is of the opinion that the Appellant should pay the full cost of the new fence and that he (the Respondent) should not make any contribution because the state of the fence was caused by the work conducted for or on behalf of the Appellant.
4. In short, the only issue with the current orders is that the Appellant submits that order 6 should be altered so that rather than bear the sole cost, the parties share the cost equally. On the other hand, the Respondent supports the retention of order 6 in its current terms.
[3]
Consideration
The Appeal Panel decision in Minifie v Maxwell [2020] NSWCATAP 30 concerned a dispute relating to a dividing fence and the Tribunal's jurisdiction under the DF Act. The position with respect to appeals from such decisions was summarised in [28] and [29] of that decision as follows:
28 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).
29 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].
In Collins v Urban the Appeal Panel stated that ordinarily, it is appropriate to grant leave to appeal only in matters that involve:
1. issues of principle;
2. questions of public importance or matters of administration or policy, which might have general application; or
3. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;
4. a factual error that was unreasonably arrived at and clearly mistaken; or
5. the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
The first ground of appeal concerns the Appellant's submission that he was denied procedural fairness and natural justice by reason of the case being heard in his absence in circumstances where he attempted to participate by audiovisual or audio means but was unable to connect to the Tribunal.
The NCAT Act requires the Tribunal to observe the rules of natural justice (s 38(2)) and to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings (s 38(5)(c). As was stated in Kline v NSW Land & Housing Corporation [2014] NSWCATAP 41 at [7] breach of the requirement "to be heard" under the NCAT Act or the common law may amount to an error of law and entitle a party to appeal on the question of law as of right under the NCAT Act
What is a "reasonable opportunity to be heard" will vary from case to case (Kline at [63]). That is because, as was stated by Gleeson CJ in Re Minister for Immigration & Multicultural Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [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."
The same issue arose in Sommers International Pty Ltd v Stanthorpe Carlton United Football Club Inc [2020] NSWCATAP 106. The Appeal Panel was concerned with a hearing that went ahead without the presence of the appellants. In that case, the Appeal Panel stated that the appellants had the opportunity to supply evidence prior to the hearing but did not do so, contrary to the terms of directions made by the Tribunal before the hearing. The Appeal Panel found that the absence of the appellants or the appellants' representatives at the hearing was unexplained. The Appeal Panel also noted that rule 35 of the Civil and Administrative Tribunal Rules 2014 (NSW) permits the Tribunal to proceed to hear matters in the Consumer & Commercial Division in the absence of one of the parties if the Tribunal is satisfied that notice of the hearing was duly served on the party or the Tribunal, and being satisfied that service of the notice of the hearing on the party has been duly attempted, considers that justice requires that the matter be dealt with in the absence of the party.
More recently in Merrick v Hines [2021] NSWCATAP 108 the Appeal Panel again considered what it means for a party to have a reasonable opportunity to be heard. In that decision the Appeal Panel noted the statement made in the earlier decision of Troy Hood trading as UR Place Landscape v Rutten [2016] NSWCATAP 250 at [5] in which the Appeal Panel said that it is not in every case where a Tribunal has determined a matter in the absence of a party that there will be a breach of procedural fairness. The Appeal Panel went on to state that it will be necessary for an Appellant to demonstrate that through no contumelious, dilatory or careless conduct, he or she was nevertheless unable to be present at the hearing.
In this appeal we have not been provided with a copy of the transcript of the first instance hearing, notwithstanding the direction made by the Appeal Panel for the Appellant to do so. Accordingly, it is not possible to know precisely what the Tribunal member did or did not do when faced with the prospect of proceeding with the hearing in the absence of the Appellant However, in the Reply the Respondent said that the hearing was "held up" to give the Appellant time to call the tribunal.
The Appellant's evidence in the appeal proceedings is that he attempted to make contact with the Tribunal but was unable to do so and in the course of approximately one hour sent three emails to the Tribunal. Copies of those emails were provided to us after the hearing by the email referred to above, which does not appear to have been sent to the Respondent.
Furthermore, we were not provided with copies of the evidence and submissions which the Appellant asserted he had lodged with the Tribunal prior to the first instance hearing until after the hearing of the appeal. That material was attached to the post hearing email referred to in the above paragraph. His evidence before us was that his wife had lodged such material with the Tribunal on 27 October 2023. The material provided after the hearing does not include the Tribunal's stamp confirming lodgment. The Respondent to the appeal stated that he had not received any material from the Appellant prior to the first instance hearing. The Appellant responded by saying that he had emailed such material to the Respondent. He was unable to provide a copy of that email to us during the course of the hearing of the appeal.
What we are left with is the Appellant's assertions that he attempted to make contact with the Tribunal to participate in the hearing but was unsuccessful and that he had lodged material in support of his case prior to the hearing. The only evidence corroborating these assertions concerning his absence from the hearing are three emails.
The first of the three emails is dated 15th November 2023 at 5.17 pm from the Appellant to the Tribunal. We assume that the time indicated is the time at the place at which the Appellant was then present. He has said that he was overseas. The email states that the writer (the Appellant ) had been waiting over an hour to be let into the hearing. The email asks if the hearing has been postponed. The hearing was scheduled to commence at 11.15 am Sydney time. On the assumption that this email was sent an hour later namely around 12.15 pm Sydney time on 16th November it follows that the time at the location of the Appellant when he sent the first email was 19 hours behind Sydney time.
The second email was sent roughly seven hours after the first, namely at 12.20 am on the 16th November. It stated that we (the Appellant ) "have logged in and are waiting to be admitted to the meeting room". That does not make sense for two reasons. It is inconsistent with the first email and if we assume that the first email indicates that the Appellant was at a location 19 hours behind Sydney time then the second email was sent well after the hearing had concluded because at the time the second email was sent it was 7pm on 16 November in Sydney.
The same comments apply to the third email which was sent about 26 minutes after the second, namely at 12.46 am on the 16 November 2023.
We are not persuaded that the Appellant made reasonable attempts to be heard at the hearing. One email was apparently sent. There is no evidence of the Appellant making a phone call to the Tribunal. There is no evidence that the Appellant's wife or any other person on his behalf tried to ring the Tribunal.
In the circumstances, we are not satisfied that the Appellant has demonstrated that he has been denied the opportunity to participate in the hearing. Something more than the Appellant's mere assertions is, in the circumstances of this case, required. Such evidence that has been provided does not persuade us that the Appellant has been denied the opportunity to be heard. Even if we were to grant leave to rely upon the material sent after the appeal hearing, that material does not assist the Appellant.
Accordingly, it is our view that the first ground of appeal should be rejected.
The second ground of appeal is that the decision was not fair and equitable. This ground does not raise a question of law and therefore requires leave pursuant to the provisions of clause 12 schedule 4 of the NCAT Act. The Notice of Appeal also stated that the decision was against the weight of evidence. The essential point made by the Appellant was that the orders should not have required him to pay 100% of the cost of erecting a new fence and that the appropriate order would have been a 50% sharing between Appellant and Respondent.
The Appellant's submissions which were filed on 6 March 2024 after the date required by the directions hearing included reliance upon new evidence. As the Appellant did not explain why the new evidence was not reasonably available prior to the hearing on 16 November, we indicated to the Appellant that we would not consider such material. Much of the material concerned emails exchanged after the hearing putting forward proposals to bring about a solution to the dispute between the parties.
The Respondent's material lodged in opposition the appeal included evidence which the Respondent stated had been supplied to and considered by the Tribunal at the first instance hearing. It included evidence put forward by the Respondent to the effect that damage to the fence had occurred on or about 4 March 2023 and that the Respondent had spoken to the Appellant's builder about that damage. The Respondent alleges that the builder had acknowledged that he or his workmen had caused a problem in damaging the fence. The Appellant submitted that the builder made no such concession but, during the hearing of the appeal, conceded that a subcontractor from the builder may have made such a concession.
We understand that the Appellant was not present at the property at or around the date on which the fence was allegedly damaged and therefore cannot give direct evidence. We understand that the Respondent was present and gave direct evidence in support of the submission that the builder (or a subcontractor to the builder) damaged the fence. Part of the documentary evidence relied upon by the Respondent at the Tribunal hearing was contemporaneous photographs of damage to the base of the fence; and contemporaneous emails to the Appellant complaining that damage had been caused by the Appellant's builder.
It is not clear whether the Tribunal based its decision only upon evidence supplied by the Respondent or had before it the evidence allegedly lodged by the Appellant. We are inclined to the view that the Appellant did not in fact lodge material at first instance. This view is based upon the fact that the Appellant was not able to provide a copy of the evidence lodged showing the stamp of the Tribunal evidencing lodgment, and was not able to demonstrate that he had served a copy upon the Respondent. Further, the Respondent's evidence was that no such material was served on him.
In our view, there was sufficient evidence from the Respondent to enable the Tribunal to have concluded that the fence was in a sufficient state and was approximately only 10 years old, and further that it had been damaged by work conducted or authorised on behalf of the Appellant, justifying an order that the Appellant pay 100% of the cost of erecting the new fence. Even taking into account the material lodged by the Appellant in this appeal, the evidence taken as a whole would still supports the conclusion that it was open to the Tribunal to attribute the damage to the fence to the work conducted by or on behalf of the Appellant. In short, the Tribunal's order requiring the Appellant to pay 100% of the cost does not appear to have been unjust, inequitable or against the weight of evidence. There is no basis for concluding that leave to appeal should be granted.
We should add that s 14 of the DF Act provides that the Tribunal has power to make an order stipulating the manner in which contributions to the fencing work are to be apportioned between the parties.
In conclusion, it is our view that ground 2 should be rejected.
We add that the rejection of ground 2, having regard to the evidence, fortifies our view that ground 1 should not be upheld because were a rehearing to be conducted in the presence of the Appellant and, based upon the Respondent's evidence together with the evidence filed by the Appellant in this appeal, the same result would have been open to the Tribunal, namely to make an order that 100% of the cost of new fence be borne by the Appellant.
In broad terms, we propose to affirm the orders made by the Tribunal but two adjustments are required. The first adjustment is that, because the present orders do not make it explicit that the Appellant should undertake the work identified in the orders (although that was clearly the understanding of both parties), the wording needs to make it clear that it is the Appellant who is to arrange for the work to be undertaken. Secondly, the dates in orders 4 and 5 require alteration given that no work has yet been conducted and also given that at an Appeal Panel directions hearing a conditional stay order was made.
We note that one of the orders made involves the removal of the retaining wall that is located on the Appellant's land be "removed". Under s 3 of the DF Act, the definition of a "fence" does not include a retaining wall unless it is necessary for the foundation or support of a fence.
However, that is to be distinguished from the definition of "fencing work" in s 3 of the DF Act. "Fencing work" is defined as follows:
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.
When read in the context of what orders can be made regarding "fencing work" under s 14 of the DF Act, the Tribunal has the power to order the removal of a retaining wall to the extent necessary to clear the boundary or line on which the replacement fence or portion of replacement fence is to be erected to allow for the erection of the replacement fence (s 14(1)(a) and (b) of the DF Act). The powers of the Tribunal regarding orders for "fencing work" to repair or replace an existing insufficient dividing fence are relevantly discussed in Menifie v Maxwell [2020] NSWCATAP 30 at [93]-[105]. The remedial orders of the Tribunal were only to remove the retaining wall to the extent it had collapsed into the fencing work location. Such orders, as they involved the retaining wall, were within the discretionary power of the Tribunal under s 14(1) of the DF Act.
The orders made by the Tribunal in this matter fall within the ambit of removing the collapsed retaining wall sufficiently to clear the fencing line so that the replacement portion of the fence can be constructed.
Accordingly, the orders we propose are as follows:
1. Leave to appeal refused.
2. Appeal dismissed, except to the extent of making the orders below.
3. The Appellant is to cause the existing timber fence being the boundary fence between (the addresses of the Appellant and Respondent involving the fence the subject of the appeal) to be demolished and removed from a point adjacent to the storeroom at the Respondent's property to the front boundary (the fencing work location).
4. The Appellant is to cause the collapsed stone retaining wall at the fencing work location (of approximately 400 mm in depth and 8.5 metres long) to be removed.
5. The Appellant is to cause a 1.8-metre-high timber fence to match the existing fences to be supplied and installed at the fencing location.
6. The work referred to in these orders is to be commenced by 1 May 2024.
7. The work referred to in these orders is to be completed by 1 June 2024.
8. The cost of the fencing works referred to in these orders is to be borne solely by the Appellant.
9. The fencing work the subject of these orders is to be undertaken by a licensed fencing contractor or a licensed builder.
10. The order staying the operation of the orders made at first instance is lifted.
[4]
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
[5]
Amendments
28 March 2024 - .
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: 28 March 2024