The Magistrate's reasons
12 On 4 December 2003, the Council wrote to Mr and Mrs Antonio and advised:
"…
As you are aware, the development application to erect the subject dwelling was approved on 26 March 2003 conditional upon the bay window to the rumpus room having fixed and frosted glass.
On 14 August 2003, our City Development Committee considered an application to modify the consent and agreed to delete this requirement.
In lieu of fixed and frosted glazing, the owner is required to provide a new 1.8 metre high paling fence on the common boundary.
…"
13 This letter was in evidence before the Magistrate. It is common ground that the former owner did not build the fence.
14 In the Local Court, Mr and Mrs Antonio submitted before the Magistrate that the dividing fence was not damaged or destroyed by negligence or a deliberate act by them. They denied that the dividing fence was leant upon by metal gauze and they stated that the metal gauze was tied to a tree on their property so that it did not weigh on the dividing fence. They also denied Mr Rahman's submission that the lean apparent in the dividing fence was caused by the placement of a wheelbarrow and other items against it.
15 Mr and Mrs Antonio submitted that the dividing fence was falling over because the end post was removed during the construction of a colour bond fence (at a right angle to the dividing fence) and provided a copy of a photographs showing where the end post had been removed from the dividing fence (Annexure C).
16 In his extempore reasons dated 17 March 2009, his Honour Magistrate Pierce stated:
"Section 6 of the Diving Fences Act is headed "general principle-liability for fencing work". Headings, not side notes but headings can be used to determine the meaning of the sections. So this is a general principle, right that's in the heading. Now that is a general principle, what it says is "an adjoining owner is liable in respect of adjoining lands where there is no sufficient dividing fence to contribute to the carrying out of fencing work. Et cetera et cetera" it doesn't matter whether there's already a fence there they say. That does not identify the proportions right it just simply says he is liable to contribute, either one of you.
Section 7 which is the only other section that seems to have any relevance at all, although I'll come to section 8 in a moment. Sections says "adjoining owners are liable to contribute in equal portions". With some other qualifications that don't matter but the heading to section 7 is "contribution as between adjoining owners-generally". So once again this is a general principle. In most cases it will be equal proportions.
Section 8 does provide for liability for up to the whole cost of the fencing work, to restore a fence that is damaged or destroyed by a negligent or deliberate act of the owner or someone who has entered the land with his expressed or implied consent and that's a matter of restoration.
Now one way of looking at sections 6 and 7 it might be thought that leaving aside deliberate damage or negligent damage, it might be thought that the only power is to require equal contribution and nothing else but I am inclined to think that's not the correct view because the headings have to be taken into account and each of the headings to sections 6 and 7 concern general principles. Section 6 identifies an obligation, section 7 puts a gloss on it. I think in the circumstances given the history of the requirement to replace the lost privacy, lost as a result of the lack of provision of frosted glass on the windows and the requirement at the time for a 1.8 metre fence and having in mind the fact that council declines jurisdiction itself, so that the only jurisdiction is to be what is under this Act that section 6 is worded sufficiently widely to permit me to make an order and I will make an order. As follows:
ORDER PURSUANT TO SECTION 6 THAT FAHMID AND MITA RAHMAN CAUSE TO BE CONSTRUCTED AT THEIR OWN EXPENSE A DARK BROWN COLOUR BOND FENCE TO MATCH COLOUR AS CLOSELY AS POSSIBLE. THIRTY TWO METRES IN LENGTH APPROXIMATELY, TO REPLACE THE SECTION OF WOODEN FENCE BETWEEN XX AND XX XXXXX XXXXXX ROSLANDS 1.8 METRES IN HEIGHT, SUCH CONTRUCTION IS TO BE COMPLED BY 30 MAY 2009 THAT IS A BIT OVER TWO MONTHS. …"
17 In my view it was open to the Magistrate to decide under s 6 that Mr Rahman was obliged to contribute 100 per cent of costs of the dividing fence. There is no question of mixed fact and law for which leave ought to be granted.
Procedural fairness
18 In Wakim v Mathiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405, O'Keefe J made the following observations regarding the now repealed Local Courts (Civil Claims) Act 1970 - the principles of which apply in this matter:
"20 The requirements of natural justice (or procedural fairness as it is now commonly referred to) apply to the Small Claims Division of the Local Courts. This is clear from the nature of the function to be performed by that tribunal and the statutory recognition that is afforded to natural justice by s 69(2A) of the Act.
21 The content of the requirements of natural justice is not fixed. The content fluctuates. The overarching requirement is that of fairness ( National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR at 312 per Gibbs CJ with whom Brennan J agreed). For a court that normally involves a duty to:
(i) act judicially;
(ii) deal with the matter for decision without bias;
(iii) give each party the opportunity of adequately presenting its case;
(iv) observe the procedural and other rules provided for in the relevant statute;
(v) come to its decision with that sense of responsibility that is the necessary accompaniment of the duty to do justice."
19 O'Keefe J made the same comments in Kojima Australia Pty Ltd v Australian Chinese Newspapers Pty Ltd [2000] NSWSC 1153 at [23].
20 In the Local Court, at the outset (T 1.15-31) (Ex B) the following exchange took place between the Magistrate and Mr Rahman (the applicant):
"HIS HONOUR: Who's applying for the dividing fence? You are?
APPLICANT" Yes.
HIS HONOUR: And tell me in twenty five words or less why you should have it, please.
APPLICANT: As you know, my main problem with the fence .. (not transcribable).. --
HIS HONOUR: It's what, sorry?
APPLICANT: Disobeying your order and ..(not transcribable).. she already arrest because she breached the AVO and she's under bail now.
…
APPLICANT: Yes, is all right. Now I apply for it, I send my neighbour notice to share the cost of dividing fence. My neighbour, he doesn't respond within one month and then I contacted the Department of Land and they are six months behind, then they advise me to contact the local court. I contacted to you and after 15 days I got response. I came here first time but they gave me hearing--"
21 Despite being requested by the Magistrate to confine himself to summarising his case into 25 words or less Mr Rahman did not do so. During the hearing of this appeal, Mr Rahman complained that the Magistrate refused to look at pictures of the fence that were on his laptop that was a matter for the Magistrate's discretion. The colour photographs should have been printed so that the Antonios and the Magistrate could properly view them. In any event, this ground was not raised in the notice of appeal and a fair reading of the 30 page transcript (Ex B) shows that Mr Rahman was given a more than reasonable opportunity to present his case. There was no denial of procedural fairness.
22 Leave to appeal a question of mixed fact and law is refused. The appeal is dismissed. The amended summons filed 17 July 2009 is dismissed.
23 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendants' costs as agreed or assessed.