OLSEN v SARREAL & ANOR

Appeal Tribunal: Acting Presidential Member D Stewart

Date of Orders: 22 October 2025 Date of Reasons for Decision: 22 October 2025 Date of Publication: 11 November 2025 AUSTRALIAN CAPITAL TERRITORY ) CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 24/2025

BETWEEN: Megan Alexandra Olsen Appellant AND: Allan Sarreal First Respondent Mary Rose Sarreal Second Respondent

APPEAL TRIBUNAL: Acting Presidential Member D Stewart

DATE: 22 October 2025

ORDER The Tribunal orders that:

The orders made by the original tribunal on 27 February 2025 in matter XD 1026/2024 are set aside and substituted with the following orders: 1. The Colorbond fence between 258 Pro Hart Avenue, Strathnairn, ACT and 260 Pro Hart Avenue, Strathnairn, ACT is to be replaced. 2. The applicant is responsible for the replacement of the fence. 3. The applicant is to provide at least two quotes for the replacement of the fence by qualified tradespersons to the respondent. 4. The respondents, within 14 days of receiving the quotes from the applicant under order (3), are to notify the applicant as to the preferred repairer. 5. The applicant is to provide the respondents with two (2) weeks’ notice of when the repairs to the fence are expected to take place. 6. The respondents are to ensure that the fence and area adjoining the fence on their property is sufficiently clear to allow the fence to be replaced. 7. The respondents are to allow access to their property for any employees or contractors of the repairer as need to replace the fence. 8. The applicant is to provide the respondents with a copy of the final invoice for the cost of replacement of the fence within 7 days of the invoice being received. 9. The respondents are to pay to the applicant half the cost of replacement of the fence as provided in the final invoice within 14 days of receiving a copy of the invoice. 10. The respondents are to pay the applicant within 14 days of these orders the amount of $183 being the filing fee for the fence dispute application.

11. The application is otherwise dismissed. 12. The respondents’ counterclaim is dismissed.

……………………………….. Acting Presidential Member D Stewart REASONS FOR DECISION Introduction

1. This appeal concerns a dispute between neighbours over a common boundary fence. The original applicant lodged a fence dispute application on 13 August 2024 claiming a contribution from her neighbours for the costs of erection and repair of the common boundary fence. The member dismissed the application and the respondents counter claim on 27 February 2025. The original applicant appeals that decision. For the reasons that follow, I find that the Member erred in dismissing the applicant’s application and it is appropriate to make a fence repair determination in substitution of the Member’s decision.

2. In the reasons that follow, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the presently constituted tribunal. When referring to the first instance decision, the Tribunal uses the expression ‘original proceedings’, ‘original tribunal’ or ‘Member’. For ease of reference, references to the applicant or appellant in these reasons refers to the original applicant. I have generally referred to the applicant when describing material before the original tribunal, and appellant when describing material provided during this appeal. References to respondents refers to the respondents in the original application. References to sections of legislation are from Common Boundaries Act unless otherwise indicated.

Background

3. In her fence dispute application, the applicant describes purchasing a house and land package in December 2021. The package included construction of a fence on the boundary with the respondents’ land. The appellant states that during construction on the respondents’ property a large site cut of up to 1.5m deep was made up to the boundary with her property. The appellant claims that the respondent’s delays in constructing a retaining wall resulted in soil from the appellant’s property eroding onto the respondents’ property, and when the retaining wall was erected the respondent failed to properly provide for drainage and refill and compact the soil behind the retaining wall. This has meant that soil on the appellant’s property has continued to sink resulting in gaps underneath the fence that allow animals to travel between the properties, and contributed to the fence being unstable such that it now requires replacing. The appellant sought orders for the respondents to pay for half of the costs of the original fence and the majority of the fence repairs, as well as orders for fees and interest.

4. On 6 September 2024, the appellant lodged a civil dispute application for damages, nuisance and trespass. The description of what the dispute is about and the details of amounts claimed refers to the appellant’s fence dispute application without providing any further details. However, in final submissions provided on 9 September 2024, the applicant claimed remedies for the Respondent to: (a) Pay for half of the initial fence (b) Pay for repair of fence caused by Respondent’s treatment of the land (c) Pay for Replacement of soil to bring the appellant’s property to its original height (d) Pay for damages for recklessness and negligence (e) Remove anything affixed to the fence so it may be repaired; and (f) Re-ordered not to interfere with the fence repair and allow access for the fence repairer

5. In their response lodged 20 September 2024, the respondents ticked the box that they were making a counter claim in response to the appellant’s application. They included 8 pages of documents including 17 paragraphs headed ‘In response to the outline of Case of the Applicant’. The respondents indicated that they were not seeking monetary compensation but sought an order to stop the applicant’s “continued harassment and intimidation”.

6. The hearing in the original application was held on 27 February 2025. The Member delivered oral reasons and made orders dismissing both the applicant’s and the respondents’ applications. There is no indication that the Member regarded the appellant’s civil dispute application lodged on 6 September 2024 to be a separate application. After a request made by the applicant, the Member delivered written reasons on 27 March 2025. The transcript of the hearing, the oral reasons and written reasons provided by the Member are discussed further below.

7. The respondents have not appealed the decision of the Member to dismiss their counter claim.

Basis of the review

8. This appeal involves a review of all or part of the original decision of the original 1 tribunal. To succeed in this appeal, the appellant must show "an error of fact or 2 law in the decision under appeal and that the error affected the result". The original tribunal's exercise of discretionary powers is generally presumed to be correct unless shown to materially rely on a fact or application of legal principle shown to be in error or that was otherwise wrong. Only when satisfied that there was an error may the appeal tribunal exercise its discretion in substitution for the 3 original tribunal.

Reasons for decision

9. The appellants pointed to several differences between the oral reasons for decision provided on the day of the hearing and the written reasons for decision provided on 27 March 2025. As this issue affects the analysis of the alleged errors to follow it has been dealt with first.

10. The ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) variously refers to decisions, orders and reasons. Decisions are the broad ambit of the tribunal. A decision of the tribunal is defined in the Dictionary of the ACAT Act to mean: (a) an original decision on a matter stated in an application; or (b) the review of another entity’s decision stated in an application; or (c) an advisory opinion on a matter stated in an application; or (d) for an appeal – a decision by the tribunal for the appeal.

11. The objects of the ACAT Act in section 6 include ensuring that decisions of the tribunal are fair. There are various powers for the tribunal to deal with and review 4 the decisions of others. A party to the original decision can be joined as a party

1 ACAT Act s 82(1)(b). 2 Ezekiel-Hart v Council of the Law Society of the Australian Capital Territory [2021] ACAT 116 at [6] 3 Ogilvie v Jemena Networks (ACT) Pty Ltd & Anor [2023] ACAT 20 at [28], citing House v King [[1936] HCA [40]; Norbis v Norbis [1986] HCA 17; Council of the Law Society of the ACT v LP 2021 [2021] ACAT 16] at [62] - [66] 4 See e.g. ACAT Act, Part 4A, and Division 6.3. 5 to an appeal from that decision. Decisions can be made without a hearing if it is in the public interest and the tribunal has sufficient information to make an 6 7 informed decision, or if the parties reach agreement. Under section 57, an authorising law may set out the powers of the tribunal and the decisions it may 8 make. A decision on an application can be reserved and delivered, including 9 through a written statement of reasons being prepared and delivered. Parties to 10 an original application can appeal the decision on a question of law or fact and the appeal tribunal can deal with the appeal as a new application or as review of 11 all or part of the original decision on the application by the tribunal.

12. One way of making a decision is to make an order. These include interim orders before an application is finalised to preserve the position of a party (s 53), procedural orders directing the conduct of the application, or final orders determining the outcome of an application. Orders can be made by being pronounced in the tribunal hearing, recorded as having been entered, or made available to the parties (s 61). The tribunal has an obligation to make and keep a written record of any non-interim orders it makes which must be provided to each party within 7 days (s 59). The Tribunal must also, upon request, provide a statement of reasons under section 60 of the ACAT Act for the making of an order. That section states: 60 Statement of reasons (1) This section applies if— (a) the tribunal makes an order on an application; and (b) within 14 days after the day the order is made, a party asks for a statement of reasons for the making of the order. (2) The tribunal must give the party a written statement of reasons or a transcript of an oral statement of reasons for the making of the order. (3) The statement of reasons must set out—

5 ACAT Act, s 29 6 ACAT Act s 54 7 ACAT Act s 55 8 Note that the Common Boundaries Act, as such an authorising law, provides for applications for and powers in new fence, repair, repair cost and unleased land determinations. 9 ACAT Act s 62 10 ACAT Act s79 11 ACAT Act s 82 (a) any principles of law relied on by the tribunal; and (b) the way in which the tribunal applied the principles of law to the facts. Note For what must be included in a statement of reasons, see the Legislation Act, s 179. (4) This section does not apply to an order under section 53 (Interim orders) or an order of a procedural nature.

13. A statement of reasons is therefore different from the written record of the details of an order made on an application. Section 60 also indicates that there can be both a written statement of reasons and a transcript of an oral statement of reasons for the making of the order.

14. Section 179 of the Legislation Act 2001 states: 179 Content of statements of reasons for decisions (1) This section applies if a law requires a tribunal or other entity making a decision to give written reasons for the decision, whether the term ‘reasons’, ‘grounds’ or any other term is used. (2) The document giving the reasons must also set out the findings on material questions of fact and refer to the evidence or other material on which the findings were based.

15. Under section 63 of the ACAT Act, the tribunal may correct an error in an order, including a decision, of the tribunal that arises from a clerical mistake or accidental slip or omission. By allowing correction of a decision, section 63 may include correction of an error in a statement of reasons for the making of the order, but only from a clerical mistake or accidental slip or omission. Similarly, section 78 provides for a correction to an order made on an application to be considered by a ‘correction tribunal’ on the request of the President (s 78). There is no provision for corrections to be made to oral reasons other than an appeal within the Tribunal, and then on application by the parties under section 79 rather than the member making the original decision.

16. Various decisions of the tribunal have referred to the possibility of differences 12 between oral and written statements of reasons provided by the tribunal. These

12 See for e.g. Council of the Law Society of the ACT v LP 201810 [2018] ACAT 122; In the matter of Toby [2020] ACAT 90. See also In the matter of ED [2017] ACAT 84 where reference is made to written statement of reasons where oral reasons were also provided. cases in turn have generally referred to the comments of the Federal Court in 13 Negri v Secretary, Department of Social Services on the scope under section 43 of the Administrative Appeals Tribunal Act 1975 (Cwth) (AAT Act) for written reasons to depart from earlier oral reasons. Under section 43(2) of the AAT Act, the AAT was required to give reasons either orally or in writing for its decision. Where reasons were given orally a party could request the AAT provide a written 14 statement of findings on material questions of fact and the evidence or other 15 material on which those findings were based. The court drew a distinction between the reasoning adopted by the AAT in reaching its decision, and the expression of that reasoning in its oral and written reasons for decision. The court stated: the reasons or explanation given in writing may be different to that given orally. Different reasons, as between those provided orally and those later provided in writing, are not necessarily demonstrative of different reasoning. As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B). Whether a statement of reasons passes from permissible elaboration to 16 impermissible departure will sometimes be a question of degree.

17. This approach was said to be consistent with the practical constraints of a busy tribunal, and the: desirable goal of the Tribunal giving unelaborate ex tempore oral reasons in appropriate matters. It furthers the objective of fair, just, economical, informal and quick review … and admits of proportionality of review 17 mechanism to the complexity of the matter …

18. In my view, the provisions of the ACAT Act, when taken with the Legislation Act, similarly suggest that the written statement of reasons can depart from the oral reasons given at the hearing, and may add to the expression of reasons to

13 [2016] FCA 879 14 AAT Act s 43(2A) 15 AAT Act, s 43(2B) 16 [2016] FCA 879 at [27]-[28] 17 Ibid at [29] include findings on material questions of fact and references to the evidence or other material on which the findings were based which were not included in the original decision. However, in doing so the reasoning for the decision must remain consistent and cannot divert substantially from the reasoning upon which the decision was made.

19. This is consistent with the approach in other courts. In Bar-Mordecai v Rotman 18 & Ors, for example, the NSW Court of Appeal stated: It is always possible, indeed proper, for a judge to revise ex tempore reasons. So long as the substance of the ex tempore reasons is not altered, nor the orders which they sustain, there is no bar to revision, even if it is 19 extensive.

20. The NSW Court of Appeal emphasised the policy of encouraging judges, where it is possible and appropriate to do so, to decide cases promptly and give judgements immediately. This extended to allowing corrections of fact or alter expression so as to express the judge’s intended meaning when he gave the 20 reasons for decision.

21. The result of cases such as Negri is to allow consideration of both the oral and written statements of reasons but that the written statement is generally to be preferred unless they should be considered as not, in fact, the reasons for decision of the Tribunal. 21

22. In Clarkson v St Vincent De Paul Samaritan Services the Supreme Court considered the implication in section 60 of the ACAT Act that the obligation of the tribunal to give reasons only arises where a request for reasons is made. As the circumstances of that case illustrated, it is important to make it clear, if no reasons or abbreviated reasons are given, that a party has an entitlement to make 22 a request under section 60.

18 Bar-Mordecai v Rotman & Ors [2000] NSWCA 123 19 Bar-Mordecai v Rotman & Ors [2000] NSWCA 123 at [193] 20 Bar-Mordecai v Rotman & Ors [2000] NSWCA 123 at [194] - [195] 21 Clarkson v St Vincent De Paul Samaritan Services [2016] ACTSC 235 at [91] 22 Clarkson v St Vincent De Paul Samaritan Services [2016] ACTSC 235 at [92]

23. In the original hearing in this matter, after oral reasons were provided by the Member, the applicant asked for a copy of the decision’s reasons as, they said, the facts relied on were not correct. The Member responded by indicating that the appellant could lodge an appeal, and could rely on the transcript for a record of what facts were relied upon. The Member did not refer to the ability to request a written statement of reasons under section 60, or indicate that the Member might wish to correct or add to their reasons for decision if a request was made. I consider this adds to the inference that the Member intended their oral statement at the conclusion of the hearing to represent their reasons for the orders made on that date.

Differences between the oral and written reasons for decision Contribution to the original cost of construction of the fence

24. The applicant had initially claimed $2,500 for half of the cost of the initial fence. The appellant had based this figure on half of the amount that had been agreed between her and the builder to be retained on trust from the settlement figure until the fence had been constructed. The appellant argued that she understood this amount to represent the cost of erecting the fence which had been delayed, she claimed, until the retaining wall had been erected and backfilled by the respondents. The respondents gave evidence that they had paid the builder of the applicant’s home an amount of $1,708 being half the amount that the builder claimed he had paid the fencer to build the fence.

25. In his oral reasons for decision, the Member stated that the applicant had paid her builder a fee which was included in the original house and land package and the builder ‘who owned the land at the time the fence was installed, has installed the 23 fence’. The Member held that if the applicant had a right to demand payment for construction of the fence it would have been with the builder and not from the respondents as the builder owned the land at the time the land was built and the respondents had paid the builder for the cost of half of the cost of the fence.

23 Transcript for the matter of XD 1026/2024dated 27 February 2025, page 174

26. In his written reasons for decision, the Member also refers to the land being owned by the builder and a total package fee being paid by the applicant including the construction of a fence bordering the respondents’ property. However, the Member then states that the “fence was constructed without any notice that there was an intention to build a fence being given to the respondents before it was 24 constructed”.

27. The Member then describes the circumstances leading to the respondents’ payment to the builder of approximately $1,700 in relation to the fence. The member then states: Fundamentally, the respondents’ liability to pay for the fence appears questionable as the applicant did not give the respondents notice of an intention to build the fence before it was constructed. In the Tribunal’s view 25 the respondents are not liable for the cost of the fence’s construction.

28. There is no express reference to the timing of the construction of the fence relative to the applicant’s ownership of the land.

29. In my view the differences between the oral and written statement of reasons goes beyond altering the expression of the Member’s reasoning. The oral reasons on this issue are premised on findings that the builder owned the land at the time the land was built, and that the respondent’s had paid the builder for half of the builder’s costs for the fence. There is no reference to a lack of notice of the fence’s erection being provided to the respondents. The written reasons, in contrast, make no explicit reference to the finding of fact in the oral reasons that the builder was the owner of the land at the time the fence was erected. If required, I would have been prepared to accept the oral reasons as the reasons for the member’s decision on this aspect of the application.

The cause of any structural damage to the fence

30. In oral reasons for the decision, the original tribunal stated that the evidence of gaps being created under the fence due to subsistence of the soil was uncertain. The Member stated that there was competing evidence from the fencer who had

24 OD [2] 25 Reasons for decision dated 27 March 2025, at[5] constructed the fence and a landscaper who had quoted on repairs to the fence about the cause of any structural damage, and that the applicant had not established that any damage was caused by the respondent or would not have been mitigated if the appellant had permitted the respondent to back-fill the retaining wall as intended.

31. In his written reasons, the Member was satisfied that the fence may need repair but not satisfied that the evidence shows the respondents were responsible. In the absence of expert or qualified reports, the Member stated that they relied on the fencer who constructed the fence and a landscaper who had quoted to repair the fence. The Member characterised the fencer’s evidence as blaming the fence’s problems on the retaining wall constructed by the respondents. The Member described the landscaper, in contrast, as: adamant that the original construction was faulty, that the fencer had either failed to compact or ensure the ground was compacted, that the concrete footers were flawed and that whilst there was some chance that the retaining wall contributed to the issues that the fence had, he was adamant 26 that the original construction was flawed.

32. The Member found the evidence of the landscaper more convincing.

33. The Member also considered important that the appellant had screamed at the operator of a bobcat attempting to back-fill the retaining wall to stop trespassing and get off her land, something verified in video footage taken by the Respondents.

34. In my view, the oral and written reasons for this aspect of the appellant’s claims are consistent and I have accepted the written reasons as the reasons for the original tribunal’s decision.

Cost of replacement of soil

35. In his oral reasons, the Member stated that there was no credible evidence for the applicant’s estimate for the cost of the replacement of soil which had allegedly subsided due to the lack of compacting behind the retaining wall, and the

26 Reasons for decision dated 27 March 2025 at [11] applicant had refused the respondent access to her property to back-fill the retaining wall.

36. The Member also referred to this lack of evidence in his written reasons, adding “there was no engineering evidence to prove that the respondents had caused the 27 gap in the first place”.

37. The oral reasons of the Member refer to the lack of engineering evidence in relation to the payment for repairs to the fence and the issue whether any repairs were required due to the respondents not backfilling behind the retaining wall properly. In my view the reference to engineering evidence in relation to the replacement of the soil can be attributed to the Member’s view on this issue. I am therefore prepared to accept the Member’s written reasons as the reasons for their decision on this matter.

Whether the respondents had acted in a reckless or negligent manner

38. In his oral reasons, the Member stated that there was no independent or credible evidence that the respondents had acted in a reckless fashion, and, if they had been negligent not to backfill or in taking other action, they were prevented from rectifying that negligence by the appellant.

39. In his written statement, the Member also stated there was no independent or credible evidence that the respondents had acted in a reckless or, on the balance of probabilities, negligent fashion. The Member did not identify the basis on which the claims for recklessness and negligence were made.

40. In my view, the breadth of the negligent actions described in the oral reasons suggests that there is little difference in substance between the two statements of reasons. However, the ambiguity in the written reasons may properly be considered in light of the oral reasons, such that the references to negligence being referred to by the Member are such that the respondents defence of being prevented from properly backfilling the retaining wall apply.

27 Reasons for decision dated 27 March 2025 at [15] Other aspects of the appellant’s claims

41. In his oral reasons the member stated it was unnecessary, in light of his orders in relation to the other matters above, to review the last two remedies sought by the appellant. The written reasons included a finding in relation to matters affixed to the fence by holding that there was no evidence that black cloth fixed to the fence was joined or stuck in any permanent manner, and that any plants hung off the fence had been removed. In his written reasons, the Member also stated that there was no evidence the respondents had refused access to their property to allow repair of the fence, in contrast with the appellant who had refused access to her property to allow the backfilling of the retaining wall.

42. In my view, these written reasons are not inconsistent with the oral reasons and include consistent findings to make clear the member’s intention in making the orders he made. I therefore accept the written reasons for decision in relation to these aspects of the applicants claims.

The respondents’ counter claim

43. In both the oral and written reasons, in discussing the respondents’ counter claim the original tribunal found that there was evidence that both parties were harassed by each other. However, as no tangible order had been sought by the respondents their counter claim was also dismissed. I therefore accept the written statement to be the reasons for the member’s dismissal of the counter claim, as well as the finding that both the applicant and respondent had been harassed by each other.

Additional material

44. At the appeal hearing, the appellant sought to rely on material relating to the compliance by the respondent with the National Construction Code (Code). This material had not been before the original tribunal. The applicant’s Outline of Case document referred to the Code at various points. However, details of how the Code applied to construction of the Respondent’s retaining wall were not included in the applicant’s outline of case or presented in argument before the original tribunal.

45. Under section 82 of the ACAT Act, an appeal tribunal may, if leave is granted, receive further evidence about questions of fact. Leave generally requires establishing the relevance of the material to establishing error on the part of the original tribunal. The tribunal looks to whether there is an acceptable reason for the evidence not being before the original tribunal, and would it likely have 28 produced a different result given its probative value to the issues in dispute.

46. The material sought to be adduced by the applicant largely consisted of submissions on the application of the Code to the retaining wall built by the respondents. The application of the code seemed to depend, at least in part, on findings of fact relating to the depth of the site cut which were not before the original tribunal and disputed by the respondents at the appeal hearing. This material, and the associated questions of fact required to determine its application, could have been argued before the original tribunal. Even if accepted, it is not clear what effect, if any, breach of the code would have for the arguments before the original tribunal. The material would also not be relevant to the original tribunal’s finding that the appellant had prevented the respondent’s mitigation efforts. For these reasons I declined to grant leave for additional material to be considered in the appeal.

Alleged errors

47. The appellant provided a list of 23 alleged errors of fact or law as part of her submissions on the appeal. She presented these errors in a slightly different order and grouping in her appeal submission. The appellant also commented upon and expanded many of these alleged errors in some detail at the appeal hearing. I have generally adopted the groupings in the appeal submission in the discussion below.

Procedural errors of law in the original hearing No dispute of the original application

48. The appellant submitted that the original tribunal had erred in accepting the respondents had disputed her original application as well as lodging a counterclaim. The appellant relied on the respondents ticking the counterclaim

28 See Hurst-Meyers v Aulich Civil Law Pty Ltd ACN 155 746 777 [2020] ACAT 56 at [31]; Feng &Anor v UP 840 [2023] ACAT 8 at [10]-[11]. checkbox on the ‘Response – Civil Dispute’ form provided by the tribunal. The applicant submitted that this indicated that the respondents did not wish to dispute the claim and only wished to lodge a counterclaim.

49. The appellant also relied on section 106(2) of the ACT Civil and Administrative Tribunal Rules 2024 (ACAT Rules) which states: A respondent to a civil dispute application may— (a) admit liability to the application in whole or in part; or (b) dispute the application; or (c) lodge a counterclaim; or (d) rely on a set-off. The appellant submitted that the reference to ‘or’ indicated that the respondent’s had to select one of the options.

50. In my view the intention of section 106 ACAT Rules is to present the list of options for the response and does not limit the respondents to just one option. A respondent generally will either admit liability in whole or in part or dispute the application. They may also lodge a counterclaim for a distinct basis on which they claim the applicant is liable or rely on a set-off to allay some of the liability claimed by the applicant. It is inherent in the options to lodge a counter claim or rely on a set-off that they are also admitting or disputing liability to the application.

51. The original tribunal had considered this argument and found that the respondents’ response, which included a separate statement with 17 paragraphs said to be in ‘response to the Outline of Case of the Applicant’ and which clearly disputed the claims made by the applicant in their original application, to dispute the applicant’s application. I do not find this finding to be in error.

Failure to take an oath or affirmation

52. The appellant submitted that the original tribunal had erred in not requiring any of the parties to take an oath or affirmation at the original hearing. The appellant relied on section 21(1) of the Evidence Act 2011 which requires a witness in a proceeding to take an oath or make an affirmation before giving evidence. The appellant also submitted that at several points during the original hearing, the respondents gave inconsistent evidence which goes to their credibility.

53. The tribunal need not comply with the rules of evidence applying in the 29 Territory. The tribunal must also seek to ensure that its procedures are as “simple, quick, inexpensive and informal as is consistent with achieving justice”, facilitate resolution of the issues in a way proportionate to the importance and 30 complexity of the subject matter, and are fair. Therefore, while having the parties take an oath or make an affirmation is generally advisable, particularly where the credibility of the parties might be in issue, the original tribunal was not in error for failing to do so in this matter.

54. In my view, the examples provided by the applicant of where the respondents gave inconsistent evidence are not necessarily evidence which goes to their credibility. They may reflect a misunderstanding or misstatement due, in part perhaps, to difficulties with language or recollection. In any event, as discussed further below, I do not regard the findings of the original tribunal to have depended on a view as to the credibility of the parties.

Application of the Listening Devices Act 1992 and Crimes Act 1900

55. The appellant claimed that the original tribunal erred in not correctly applying provisions of the Listening Devices Act 1992 and Crimes Act 1900 relating to the behaviour of the respondents.

56. The appellant submitted that the respondent’s had breached section 4(1) of the Listening Devices Act by using their phones to record a private conversation. Similarly, the appellant submitted the respondents had breach section 35 of the Crimes Act relating to stalking, which includes keeping the stalked person under surveillance or engaging in intimidation, harassment or molestation of the stalked person. The appellant submitted that evidence provided by both parties showed the respondents’:

29 ACAT Act, s 8. 30 ACAT Act s 7. reckless harassing behaviour involved surveillance without [the applicant’s] consent, following [the applicant] up the street and to her garage, filming [the applicant] in her house, entering [the applicant’s] 31 property without consent and attempting to intimidate her.

57. The respondents, the appellant submitted, were “reckless in stalking and harassing [the appellant], acting with a conscious disregard for a substantial risk, or failing to give proper thought to a risk that would be obvious to a reasonable 32 person”.

58. The sections of the Listening Devices Act and Crimes Act referred to by the 33 appellant create criminal offences. The jurisdiction of the tribunal in a civil dispute application is limited to the applications listed in section 16(1) of the ACAT Act. The tribunal does not have jurisdiction to determine the guilt or otherwise of the respondents under those sections, or to award compensation in a civil claim deriving from breach of those provisions.

59. At the appeal hearing, the appellant confirmed that this ground also relates to her claim for damages for the respondents’ recklessness and negligence. She submitted that she had properly raised the respondent’s harassment of her and her daughter as a basis for damages under her civil dispute application as part of the original hearing. She submitted that the original tribunal had erred in failing to make any findings in relation to her claims in this regard.

60. I do not agree that a claim by the applicant for damages relating to surveillance and harassment was properly before the original tribunal. As described above, this proceeding was initiated by the applicant applying to resolve a fence dispute under the Common Boundaries Act. The applicant sought orders for repair or replacement of the fence, urgent repair or replacement of the fence, and an order

31 Appeal submission [14] 32 Appeal submission [13] 33 I note s 10 of the Listening Devices Act provides for the admissibility of evidence obtained using a listening device in both civil and criminal proceedings. Section 10(1) provides that evidence of a private conversation that has come to the knowledge of a person as a result of the use of a listening device in contravention of s 4 may not be given by the person in civil or criminal proceedings. In this matter, the video recordings produced in evidence by the respondents record the conversations they were a party to and not the basis on which they gained knowledge of the conversation. The use of a recording device is being claimed by the appellant as the basis for a claim for damages, not that the evidence of the recording not be available to the tribunal. to share the costs of building a new fence when the adjoining land was unleased by has become a parcel of land. The description of the dispute refers to the applicant calling ACT police to report the Respondent’s trespass and harassing behaviour, but then states that the applicant is seeking: a determination that the Respondent (sic) pay for half of the original fence, as well as the majority of the repairs required, as they are caused by their treatment of land. I am also seeking reimbursement of the filing and search fees, including interest.

61. The civil dispute application indicates the applicant is making a damages, nuisance and trespass application. However, the description of the dispute and monetary amounts claimed merely refer to the fence dispute application. The applicant’s final submission dated 6 September 2024 claims $3,000 for the respondents’ recklessness and negligence but does not detail how that figure is reached. The outline of case refers to the Respondent being reckless and negligent in relation to them entering into a contact with the builder that didn’t include a retaining wall, excavating the block all the way to the boundary up to a meter deep, and delaying the construction of the retaining wall. There is no reference to the Listening Devices Act or Crimes Act nor to any recklessness or negligence relating to trespass or harassment.

62. Even if the issue of damages for negligence and trespass was before the original tribunal, I do not regard the original tribunal being in error in not accepting the evidence as having established a basis for damages to be paid. The original tribunal found in his written reasons that both parties had claimed to have been harassed by the other, and that evidence exists that ill will and discord exists between the parties. However, there was insufficient evidence before the original tribunal to establish that the applicant had suffered harm beyond that associated with the fence dispute so as to justify the payment of damages as claimed by the applicant.

Errors of fact in the reasons for decision Ownership of the appellant’s land at the time of erection of the fence

63. As described above, I have accepted the reasons for the decision of the original tribunal includes the statement in the oral reasons that the fence was constructed at a time when the builder of the appellants home, and not the appellant, owned the property in question. I do not understand it to be disputed that this was an error on the part of the original tribunal. The applicant had provided evidence that she settled the property and moved into the home constructed by the owner in December 2022. There is some uncertainty over when the retaining wall was erected, but the respondents claim it to have been erected in January 2023. Both parties accept the fence was built in mid-2023. The question then arises as to whether this error was material.

64. The original tribunal commented that if the applicant has any rights in relation to the fence it is with the builder rather than the respondents. It is not clear from the oral reasons whether this is because of who owned the property at the time of the erection of the fence, the fact that the respondents had paid the builder half of what the builder claimed the fence cost him, or some combination of the two. In any event, in my view the error relating to the timing of the land being transferred could not have made a difference to the conclusions reached and does not constitute a material error.

65. At common law there is generally no obligation on owners of adjoining land to 34 contribute to the construction of a dividing fence. In the absence of agreement with the adjoining property owner, an occupier (which in this case is the owner of the property) seeking a contribution towards the construction of a new fence can make an application to the tribunal under section 4 of the Common Boundaries Act 1981 for a new fence determination. However, that section requires the owner to have asked the adjoining owner to join in erecting the fence but the neighbours have been unable to reach agreement. Under section 4(3), the owner must have given the adjoining owner a notice asking the other occupier to 35 discuss erecting and paying for the fence 30 days before applying to the tribunal.

34 In the absence of circumstances giving rise to nuisance, a duty of care or establishment of a form of easement or a legally enforceable contract: see LexisNexis, Halsbury’s Laws of Australia (at 12 May 2023) 355 Real Property, ‘Fencing Obligations’ [355-14065]. 35 A note to s 4(3) states that if a form is approved under the ACAT Act it must be used. However, at all relevant times there is no evidence of an approved form being available for use: see Notice to Discuss Repair or Replacement Cost of Fence. AF2009-175, repealed on 19 October 2015 (see approval statement for AF2015-99 to AF2015-109).

66. The powers of the tribunal in making a new fence determination are set out in section 10. They include determining the nature and line of the new fence, who is responsible for erecting it, the amount to be contributed by the other party and how and when that contribution is made. In determining if a basis fence is to be erected, the tribunal must not require a party to contribute more than half the cost of erecting a basic fence unless it is not practicable to erect a basic fence or there are special circumstances requiring a fence other than a basic fence to be erected. The power of the Tribunal to make a new fence determination is therefore dependent on the determination being made before the construction of the new fence.

67. There is a similar requirement in section 5(4) to give notice asking the neighbour to discuss contributing to the cost of repairing or replacing a common boundary fence before bringing an application for a repair determination. The tribunal also has similar powers when it makes a determination under section 11 that a fence is in need of repair or replacement and the other party should be required to contribute to the cost. In determining the amount that should be contributed by the other party, the tribunal must apply the principle that the costs should be borne in equal proportion unless that would be unjust in the circumstances (section 11(4)).

68. In the case of a repair cost determination under section 6, in contrast, the occupier of either property may seek a contribution to repair or replacement of the boundary fence without notice being given, but only where the repair or preplacement was necessary to protect people lawfully on the properties or to prevent escape of animals. Giving notice is required to then apply to the tribunal for a repair cost determination, where the tribunal must determine whether it is reasonable for the other party to contribute to the cost of repair or replacement and, if so, how much they should contribute (section 12). Again, the tribunal must apply the principle that the cost should be borne by the parties equally unless that would be unjust in the circumstances (section 12(4)).

69. Section 9 of the Common Boundaries Act 1981 deals with non-compliant notices. It states: 9 Non‑compliant notices (1) An applicant who fails to comply with a notice requirement under section 4 (3), section 5 (3) or section 6 (4) (the relevant provision) may apply to the ACAT for an order under this section. (2) The ACAT may, by order— (a) accept a document given to the respondent as notice under the relevant provision; or (b) correct a defect in a notice given to the respondent; or (c) deal with the application as if the notice given to the respondent complied with the relevant provision; or (d) if no notice has been given under the relevant provision— declare who the respondent to the application is. (3) If the parties consent, the ACAT may, by order, waive a requirement to— (a) give written notice; or (b) wait a certain period before making an application.

70. The tribunal therefore has power to accept a document given to the respondent as a relevant notice, correct a defect in a notice given to the respondent, or deal with the application as if the notice given to the respondent complied with the relevant provision (see section 9 (2)). However, it is inherent in each of these provisions that there was some form of notice provided.

71. In comparison, under section 9(2)(d) where no notice has been given under the relevant provision the tribunal has power to declare who is the respondent to the application. The need to declare who is the respondent stems from the references in s 8 to the parties to an application generally being the applicant and the person who is given the relevant notice. The limited power of the tribunal where there is no notice reinforces the general position that notice of some form is required before the Tribunal can proceed to deal with an application. Similarly, the tribunal can waive the requirement to give a written notice or wait before making an application only if the parties consent (section 9(3)).

72. The Common Boundaries Act therefore doesn’t generally entitle each the owners of neighbouring properties to recover half of the costs of erecting or repairing the boundary fence. It provides a process whereby disputes between them for the erection and repair of fences can be resolved, but only after the parties have attempted to reach agreement between themselves. Importantly in this matter, the Common Boundaries Act does not provide for the tribunal to apportion the costs of a new fence which has been constructed prior to an application being made to the tribunal; an application for a new fence determination can only be brought if adjoining parcels of land are not separated by a fence (section 4(1)(a)). Once the adjoining parcels of land are separated by a fence, an owner can only bring a repair determination or repair cost determination.

73. Therefore, even when it is accepted that the applicant was the owner of one of the properties where the boundary fence in question was erected at the time it was erected, that is not sufficient to entitle the applicant to apply for a new fence determination or for the tribunal to make an order that the respondents contribute to the cost of that fence. The error of fact relating to the ownership of the appellant’s land at the time of erection of the fence is therefore not material to the outcome of the proceeding.

Lack of notice of erection of the fence

74. I note that the applicant contends that she asked the respondents to contribute to the costs of the fence prior it being erected. She points to the dispute between the parties relating to the need to construct the retaining wall before the fence could be built. She also indicated at the hearing of the appeal that it was a condition on the sale of both her and her neighbours land that a fence would have to be constructed. Therefore, the appellant submits that even if the written reasons of the original tribunal are accepted and lack of notice is a reason for denying her application for the costs of the fence being erected, she had provided notice to the respondents prior to the erection of the fence and the tribunal should remedy any defect in this notice in proceeding to hear her application.

75. I note that the applicant was not able to point to written evidence before the original tribunal that she had provided notice of erection of the fence. However, I would have been prepared to accept the applicant’s submission that she had provided notice of some form, and that in the circumstances the original tribunal should have considered whether to deal with the application as if the notice given to the respondents complied with the relevant requirements under section 9(2)(c). However, even if such as order was made, that would not entitle the original tribunal, or this Tribunal, to deal with the application as if the other requirements for the application and order were complied with. In particular, as discussed above, it would not enable the original tribunal, or this Tribunal, to make a new fence determination after the new fence had been constructed.

Payment by respondents to the builder for costs of erection of the fence

76. One of the reasons relied upon by the original tribunal for rejecting any liability of the respondents for the cost of erection of the fence was that the respondents paid the applicant’s builder what they were told was half of the cost to the builder 36 of erection of the fence. The appellant submitted that this not only failed to account for the brick component of the boundary fence, but also mischaracterised the nature of her relationship with her builder. The applicant contended that she had paid for construction of the fence as part of the home and land package she had purchased from her builder. The applicant had taken ownership of the property subject to an amount of $3,000 being held on trust by her lawyers until the fence had been erected. The full amount had been discharged from trust and paid to the builder after completion of the fence. Therefore, the applicant submitted, she and not her builder had borne the costs of the new fence, and the builder was not entitled to any contribution by the respondents.

77. It may be that the builder’s lack of entitlement to payment is what the original tribunal was referring to when, in the oral reasons for decision the tribunal refers to the applicant having a right to demand payment from the builder rather than the respondents. However, I do not accept that there was any basis on which the respondent’s could claim that they had discharged any liability in relation to the cost of the new fence by the payment to the builder. I also do not accept that the payment represents, as the original tribunal suggests, the respondent’s ‘trying to be fair’ to the applicant by agreeing to pay for half of the cost of the fence.

78. I therefore accept that the original tribunal was in error in accepting this payment by the respondents in discharge of any liability for half of the cost of the fence’s construction. However, as discussed above, as in my view there is no basis on

36 Transcript for the matter of XD 1026/2024 dated 27 February 2025, page 174, Original decision at [4] which the Tribunal can make a new fence determination in this matter, this error is not material.

Need for repairs to the fence

79. The original tribunal, in the written reasons for decision, accepts that the applicant had established that the fence may need repairs, but was not satisfied that the evidence shows that on the balance of probabilities the respondents are 37 responsible for the repairs. In the absence of any reports from a structural engineer or other objective expert, the original tribunal considered the evidence of the fencer who had constructed the new fence, and a landscaper who had provided a quote to repair the fence. The original tribunal characterised the fencer 38 as blaming the retaining wall for the fence’s problems, while the landscaper: was adamant that the original construction was faulty, that the fencer had either failed to compact or ensure the ground was compacted, that the concrete footers were flawed and that whilst there was some chance the retaining wall contributed to the issues that the fence had. [the fencer] was 39 adamant that the original construction was flawed.

80. The original tribunal also found that the evidence of the landscaper (as compared 40 to the fencer) “was more detailed, objective and convincing”.

81. The appellant submitted that the original tribunal had mischaracterised the evidence given by the landscaper and had erred in accepting the evidence of the landscaper over that of the fencer. She provided several examples from the transcript of the original hearing in which she says the landscaper pushed back against the original tribunal member’s suggestion that the main problem was with the construction of the fence; both the landscaper and fencer discussed the need to properly compact the area behind the retaining wall as well as the need to provide for adequate drainage. The applicant also submitted that the fencer had inspected the fence on numerous occasions and had a much more extensive

37 Original decision at [7]. 38 Original decision at [10] 39 Original decision at [11] 40 Original decision at [12] knowledge of the fence compared to the landscaper who had only viewed the fence for a short period for the purposes of providing a quote.

82. I do not have the benefit of hearing the evidence provided by the fencer and landscaper. I note, however, that both witnesses gave their evidence by phone, and were asked about their recollections of the fence after having been called by the Tribunal on short notice. Based on the transcript of their evidence I accept the applicant’s submission that both witnesses provided evidence that the causes of the fence not being stable included the lack of compacting of the soil and may have included lack of adequate drainage. In my view, the landscaper’s concerns about adequate workmanship included concerns about whether the fencer should have taken additional steps to compact the soil prior to erecting the fence. The fencer gave evidence that they had to use jackhammers to dig into the soil, and that any movement was due to the lack of drainage causing water to loosen the soil under the retaining wall. Even if, as the original tribunal accepted, the landscaper’s evidence was more detailed, objective and convincing, it did not provide a basis to conclude that the cause of any issues with the fence was poor workmanship by the fencer.

83. I therefore accept that the original tribunal was in error in characterising the landscaper as being adamant that the original construction was flawed. I therefore accept that the method of construction of the retaining wall, including the compacting of the soil behind the retaining wall, may have contributed to the issues with the fence. However, I note that neither quote to repair the fence included costs of installing drainage for the retaining wall which does not support the applicant’s submissions that lack of drainage was part at least of the cause of the problems with the fence.

84. Whether the error on the part of the original tribunal in characterising the evidence of the landscaper is material involves the applicant’s actions in stopping the respondents from properly back-filling and compacting the soil behind the retaining wall, so I turn to that issue now. Applicant’s refusal to allow the respondents to backfill and compact behind the retaining wall

85. The original tribunal found that the applicant had repeatedly and persistently demanded the respondents backfill behind the retaining wall. However, the original tribunal also found that, when the respondents had hired a bobcat to complete that work, the applicant had ‘screamed at the operator of the bobcat to move the bucket of the bobcat off her land and “stop trespassing”’. The original tribunal stated that these facts were verified by video footage taken by the respondents.

86. The applicant submitted that the video footage only showed a short segment of the discussions between her and the respondents on the day in question. She had objected to the respondents not informing her when the backfilling was to take place as she had requested so she could arrange to have someone supervise their work. She had also objected to the applicants inappropriately using the bucket from the bobcat to scrap soil from her property into the gap behind the retaining wall. She claimed that she did not see the soil the respondents say they had available to backfill in behind the retaining wall. The applicant submitted that she would have agreed to the respondents going onto her land to compact the soil as long as they had let her know and were doing it without taking soil from her property.

87. I have viewed the video evidence provided by the respondents which includes the applicant shouting at the respondents to stop trespassing. In my view, it was open to the original tribunal to accept that evidence as demonstrating that the applicant had refused permission for the respondents to access her property to complete backfilling the retaining wall and compacting the soil behind it.

88. However, I am concerned that the respondents have not provided any account for why the applicant reacted in the way she did on the day in question. At the appeal hearing, the respondents stated that they had not been using the bucket of the bobcat to scrap back soil from the applicant’s property, even soil which had spilled from the bucket in the course of backfilling behind the retaining wall by reaching over with the bobcat from the respondents’ property. The respondents claim they were merely doing what the applicant had asked them and did not know what had elicited the applicant’s reaction as provided in the video. Given the applicant’s repeated demands for the retaining wall to be backfilled so that she could build a fence, I do not consider it reasonable for the applicant to have objected to the respondents attempts to do so merely because of not have been informed beforehand. I also do not consider it reasonable for the respondents to have not attempted to discuss with the applicant, perhaps at a later time, how they could complete backfilling the retaining wall and compacting the soil knowing that it had not been completed to a satisfactory standard. The original tribunal did not, in his oral or written reasons, engage with this issue other than in finding that the applicant had denied permission for the respondents to compact the soil in backfilling the retaining wall.

89. It may be that the relationship between the applicant and the respondent had broken down to such an extent that such a discussion was not possible. The original tribunal, in relation to the respondents’ counter claim, found that both parties claim to have been harassed by the other and that evidence exists that ill 41 will and discord exists between the parties. However, the original tribunal did not engage with the extent, if any, this discord may have contributed to the retaining wall not being adequately backfilled and the soil compacted appropriately before construction of the fence.

90. The original tribunal, in the written statement of reasons, accepted that the fence may need repair and, though the respondents at the appeal hearing denied that the fence needed repairs, I am not satisfied that the original tribunal was in error in reaching that conclusion. The original tribunal referred to both the evidence of the landscaper that the original construction of the fence was faulty, and the refusal by the applicant to allow the respondents to backfill the retaining wall as both being important to the original tribunal’s finding that the need for repair of the fence was due to the action or negligence of the respondents. Having established error in both of these factors, I consider it appropriate to make

41 Original decision at [19] substitute findings on that issue, noting, however, the limitations of the evidence provided by both parties at the appeal hearing.

91. Under section 11 of the Common Boundaries Act, in making a repair determination, the matters which the tribunal may determine include whether the party other than the applicant should be required to contribute to the cost of the repair or replacement of the fence. This is a distinct from determining the amount that should be contributed by the other party to the cost of repair and replacement, to which the principle of costs generally being borne in equal proportions applies. I am satisfied on the evidence that was before the original tribunal that both parties contributed to the faults with the fence. It is therefore appropriate that the respondents should be required to contribute to the costs of the repair. I am also satisfied that, given the uncertainty that remains over the respective contributions of the parties, that in the circumstances it is not just that one of the parties should bear a greater proportion of the costs of repair. I therefore will make orders that the parties share the costs of repairs to the fence.

92. I consider the orders which are appropriate to reflect this finding below after considering the other alleged errors.

Respondents to pay for the cost of soil to bring the property back up to the original height.

93. In her final submissions before the original tribunal, the applicant claimed $2,000 for the replacement of soil to bring her property back to its original height. The original tribunal described this claim as relating to the crack between the applicant’s property and the retaining wall. The original tribunal rejected the claim on the basis that the original respondents had attempted to fill this crack but the original applicant had refused access, that the amount claimed was based on the applicant’s ‘rough estimates’, and the original applicant had no engineering evidence to prove that the respondents had caused the gap in the first place.

94. The original applicant claimed that that the amount claimed was based on her accurate measurements and that the respondents were never refused access.

95. In my view the basis of the cost of replacement soil was not clearly before the original tribunal. At the appeal hearing, the original applicant suggested that the soil placed behind the retaining wall by the respondents has sunk over time, whether because it was not compacted properly or the respondents had failed to provide for adequate drainage. The original applicant was claiming the cost of the soil which would be needed to bring her property back to its original height. It is therefore unclear whether the ‘crack’ referred to by the original tribunal correctly identifies what the claimed soil was intended to replace.

96. In any event, I am not satisfied on the basis of the material which was before the original tribunal that the original tribunal erred in not accepting this aspect of the claim. Even if I accept that the soil filled in behind the retaining wall was not compacted properly or adequately drained, which has contributed to the issues with the fence, this does not establish the extent to which the level of the soil has dropped and the amount of soil, properly compacted, which would be required to bring the soil back to its original height.

97. When the fence is replaced, it may be required to bring in additional soil to ensure that the levels on either side of the fence are consistent with the surrounding soil. The degree of compacting of the soil may also affect how much soil is required. In my view therefore it is not appropriate to make an order for the cost of replacement of soil.

Negligence and recklessness

98. As discussed above, the original applicant claimed $3,000 in damages for recklessness and negligence in her final submission before the original tribunal. The member refers in his oral reasons for decision to there being no independent or credible evidence that the respondents were reckless, and the respondents were prevented by the applicant from remedying any negligence. The written reasons find that, on the balance of probabilities, the applicant had not shown that the respondents were negligent. The bases on which negligence was claimed was not made clear.

99. In her submissions in this appeal, the applicant claims that there were several bases on which she claimed the respondents were reckless and negligent. These included the respondents signing a building contract which required a site cut but did not provide for a retaining wall, which resulted in considerable delays in settlement and the construction of the fence. The respondents had also acted recklessly and negligently in what the original applicant had claimed was their harassment and stalking. The original member, she submitted, had only addressed her claim of negligence in relation to the backfilling the retaining wall and not her other claims.

100. I am not satisfied that the original member made an error in not accepting this aspect of the original applicant’s claims. As described above, the claim that the respondents had acted recklessly or negligently in stalking and harassing the applicant was not adequately before the original tribunal. There was insufficient material before the original tribunal to establish the respondents were negligent in signing their building contract, such as any requirement that the retaining wall had to be built by a qualified tradesperson, or that the retaining wall, as opposed to the backfilling of the soil behind it, had been constructed negligently. The applicant has also not quantified any loss or damage associated with delays in settlement on her property. Any claim of negligence of the respondents is therefore limited to their contribution to the need to repair the fence which has been considered as part of the fence repair determination considered above.

Orders allowing access to the fence

101. In her final submission to the original tribunal, the applicant also sought orders that anything affixed to the fence by the respondents be removed and that they be ordered not to interfere with the fence repair and allow the repairer access to their property. The original tribunal was not satisfied that there was anything affixed to the fence that could not be easily removed, and that the evidence indicated that it was the applicant who had refused access to their property and not the respondents.

102. On appeal, the applicant submitted that the refusal of the member to make an order to allow access to repair the fence had caused an issue with one of her puppies escaping and meant the fence is at risk of collapse. The applicant also requested an order that, as the applicant had paid for 100% of the cost of the fence, she is the owner of the fence and can get it repaired.

103. As discussed above, the original tribunal had accepted that the fence may need repair but had declined to make a repair determination. The original tribunal was not satisfied that the respondents should be required to contribute to the cost of the repair or replacement. However, as also discussed above, the role of a determination under the common boundaries act is to allow the erection or repair of fences in the absence of agreement between the parties. As a boundary fence is, by definition, built on both properties, the ability to repair or replace a fence is not a matter of who bore the costs of the original construction or a question of ownership of the fence. Questions of trespass may also arise if one property owner attempts to substantially repair or replace a boundary fence without the agreement of the other party. It is therefore appropriate for this Tribunal to consider whether, in the circumstances, it was appropriate to make a repair determination which placed responsibility on the applicant to carry out repairs at her cost and which would provide the basis on which access to the respondent’s property could be assured.

104. As I have found that a repair determination is otherwise appropriate, I do not have to consider whether the original tribunal was in error in not making a repair determination.

Impartiality of the Member

105. On appeal, the applicant claimed the member’s language and behaviour was inappropriate and demonstrated partiality. The applicant referred to various exchanges in the transcript in which she claimed the member had: inappropriately made statements that offended the applicant’s religion; was condescending; had mischaracterised the applicant’s evidence and claims during the hearing; and had interrupted the applicant on numerous occasions to prevent her presenting her evidence.

106. In my view there is no evidence that the Member was actually biased against the applicant having formed a subjective prejudgement against the applicant in the 42 course of the proceedings incapable of alteration prior to making his decision. I also do not consider there to be sufficient evidence to indicate that the Member’s conduct created an apprehension of bias.

107. Apprehended bias requires establishing a real possibility that an informed and fair-minded observer might reasonably apprehend that the member might not 43 bring an impartial mind to the decisions to be made. This depends on the nature of the decision and its statutory context, what is involved in making the decision, 44 and the nature of the decision-maker. In this context, the original tribunal must ensure its procedures are as simple, quick, inexpensive and informal as is consistent with achieving justice and are implemented in a way which facilitates 45 the resolution of the issues between the parties.

108. My reading of the transcript of the original hearing suggests the member was frustrated at times by what he may have considered the applicant’s non-responsiveness to his questions or interruptions to his questions or the evidence of the respondents. In my view, there is insufficient indication in the transcript to justify this reaction and some of the comments of the member. However, I do not consider that the applicant was denied the opportunity to present her case before the member. Where the parties were both unrepresented and in which the main dispute involved construction and repair of a boundary fence, it was not inappropriate for the member to ask questions of the parties to identify the scope and basis of their respective cases. The interventions by the member were generally an attempt to maintain the focus of the parties on the issues being discussed. I do not consider the interventions to have been excessive or otherwise 46 to suggest that the member was not acting in an impartial manner. The member also provided an opportunity for the fencer and landscaper to give evidence, ostensibly to assist the applicant in making out her case.

42 Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 at [72]. 43 Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [6]; Charisteas v Charisteas [2021] HCA 29 at [11]. 44 Ibester v Knox City Council [2015] HCA 20 at [23]. 45 ACAT Act s 7 46 Cf Johnson v Johnson (No 3) [2000] HCA 48; see also Milenkovic v West [2024] ACAT 63 at [58] – [61].

109. I also note that the member had been appointed to hear the matter only on the morning of the hearing and having to adjourn the matter to allow him the opportunity to read through the material. The Member had properly attempted to gain a summary of the issues in dispute at an early stage to guide his understanding but which may have led to attempting to limit the applicant’s responses.

Conclusion

110. I therefore consider that the original tribunal was in error in determining that the respondent’s had not contributed to the need for repairs to the fence, and, to the extent the need for repairs resulted from not compacting the soil used to backfill the retaining wall the applicant had prevented the respondents from mitigating any defect. In my view, it is appropriate to make a fence repair determination and for the parties to share in the cost of that repair.

111. The original tribunal found that there was no evidence that the respondents had refused access to their property to allow for the fence repair. However, it is also clear from the evidence that there is considerable ill will and discord between the parties. In my view, it is unrealistic to expect the parties to come to an agreement about the carrying out of repairs without orders from the Tribunal, and hence I will make a repair determination which orders for the applicant to generally be responsible for the repairs including arranging for at least two quotes for a qualified tradesperson to carry out the repairs, for the respondents to select the acceptable quote, for the applicant to notify the respondents by placing a notice in their mail box two weeks prior to the date on which the repair is expected to take place, and for the respondents to ensure that the fence and area adjoining the fence is sufficiently clear to enable the repairs to take place.

112. As the applicant has been successful in establishing the appropriateness of a repair determination it is also appropriate for the applicant to be reimbursed for the filing fee in bringing the fence dispute application. The remainder of her application, including her application for civil remedies, should be dismissed. Order The Tribunal makes the following orders: The orders made by the original tribunal on 27 February 2025 in matter XD 1026/2024 are set aside and substituted with the following orders: 1. The Colorbond fence between 258 Pro Hart Avenue, Strathnairn, ACT and 260 Pro Hart Avenue, Strathnairn, ACT is to be replaced. 2. The applicant is responsible for the replacement of the fence. 3. The applicant is to provide at least two quotes for the replacement of the fence by qualified tradespersons to the respondent. 4. The respondents, within 14 days of receiving the quotes from the applicant under order (3), are to notify the applicant as to the preferred repairer. 5. The applicant is to provide the respondents with two (2) weeks’ notice of when the repairs to the fence are expected to take place. 6. The respondents are to ensure that the fence and area adjoining the fence on their property is sufficiently clear to allow the fence to be replaced. 7. The respondents are to allow access to their property for any employees or contractors of the repairer as need to replace the fence. 8. The applicant is to provide the respondents with a copy of the final invoice for the cost of replacement of the fence within 7 days of the invoice being received. 9. The respondents are to pay to the applicant half the cost of replacement of the fence as provided in the final invoice within 14 days of receiving a copy of the invoice. 10. The respondents are to pay the applicant within 14 days of these orders the amount of $183 being the filing fee for the fence dispute application. 11. The application is otherwise dismissed. 12. The respondents’ counterclaim is dismissed.

……………………………….. Acting Presidential Member D Stewart Date of hearing: 10 July 2025 Appellant: In person via video, self-represented Respondent 1: In person visa video, self-represented Respondent 2: In person, visa video, self-represented