Schofield v Connors

[2024] NSWCATAP 250

NCAT Appeal Panel|2024-11-13

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Source facts

Court

NCAT Appeal Panel

Decision date

2024-11-13

Source

Original judgment source is linked above.

Judgment (15 paragraphs)

[1]

REASONS FOR DECISION

This is an appeal filed pursuant to section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) from a decision of the Consumer and Commercial Division of the Tribunal dated 24 June 2024.
The decision under appeal was made under the Tribunal's jurisdiction in the Dividing Fences Act 1991 (NSW) (the DF Act). The Tribunal made orders pursuant to s 14 of the DF Act for the parties to jointly engage B & K Rural to construct a new fence about 472m long on the boundary between the parties' respective properties located a short distance south east of Tamworth, NSW, with the parties to bear equal contributions of the cost (the Decision).
The appellant was the respondent in the proceedings before the Tribunal and the respondent (on the appeal) was the applicant in the proceedings before the Tribunal.

[2]

Amended notice of appeal

In the Amended Notice of Appeal, the appellant stated the grounds of appeal to be a failure by the Tribunal to afford procedural fairness for the following reasons: 1. the appellant's documents had been filed at the Tamworth Registry however at the hearing the Tribunal only had the other party's documents which lead to the appellant providing his copy of the documents to the Tribunal which in turn disadvantaged the appellant's presentation of his case; 2. the Tribunal concentrated on the respondent's evidence and only made cursory glances of the appellant's evidence missing vital information in making the Decision; 3. the appellant did not have sufficient opportunity to give evidence about the behaviour of the respondent; 4. the Decision was an ill-informed and improper determination by the Tribunal; 1. Section 4(a) - (d) of the DF Act was not considered properly by the Tribunal ; 2. The respondent had destroyed the original fence which limited the Decision and the respondent had installed steel strainer posts without the appellant's knowledge or authority.

[6]

Submissions

The appellant submitted: 1. The appellant provided a copy of his evidence (being the 18 pages marked as Exhibit 1) to the Tribunal at the hearing; 2. The Tribunal had not considered the appellant's evidence beforehand which meant it was difficult for the appellant to explain it to the member; 3. The Tribunal failed to understand the main point of the appellant's evidence which were the photos dated 15 November 2022 which showed the fence was still standing; 4. The Tribunal member said at the hearing he had not seen the photos dated 15 November 2022; 5. The Tribunal failed to understand that the respondent had destroyed the dividing fence between their properties and had not sought the appellant's approval prior to doing so; 6. The wooden fence posts have never been washed out by flood waters or heavy rains; 7. The Tribunal continued to rely on a single point in the DF Act, which was that the fence was not repairable, when it was repairable before it had been removed; 8. The appellant should not be liable for any contribution to the new dividing fence given that the fence was destroyed by the respondent.
The respondent submited: 1. The appellant lodged his documents late in the Tribunal proceedings; 2. The dividing fence is a long and old fence with sections of no fencing, and up-ended posts as shown in the bundle of photos at pages 7-12 of the respondent's bundle dated 5 September 2024; 3. The photos at pages 7-12 of the respondent's bundle show the impact of flooding in November 2022, including that there was no fence, steel posts laying on the ground and remnants of damaged fence posts and wire laying on the ground; 4. Ben Tapp, a neighbouring farmer, swore an affidavit dated 9 January 2024 stating that there was flooding on 2 November 2022 and whilst he was looking for his bison (he says it was missing from his property as a result of damaged fencing) he attended the boundary between numbers 606 and 682 and saw that the boundary fence had been washed out and was damaged beyond repair for almost the full distance from the Peel River all the way through to Oakey Creek; 5. The dividing fence was insufficient and needed replacement.

[7]

Scope and nature of Internal Appeals

An appeal is not an opportunity for the party who was unsuccessful before the Tribunal to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80(2) NCAT Act.
In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [24]-[40], the Appeal Panel set out the principles concerning questions of law in appeals under s 80 of the NCAT Act.
An appellant is required to identify a pure question of law which then becomes the subject matter of the appeal (Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan 7 Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11]; Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 at [12, [14]; Orr v Cobar Management Pty Ltd [202] NSWCCA 220).
The appellant has clearly identified in the Amended Notice of Appeal and confirmed at the hearing, that he contends the Tribunal failed to afford him procedural fairness.
A failure by the Tribunal to afford a party procedural fairness, if established, would be an error on a question of law. It would be a breach of the requirements of procedural fairness if the Tribunal did not ensure that the appellant had a reasonable opportunity to be heard or otherwise have submissions considered in the proceedings: see s 38(5)(c) of NCAT Act. The appellant bears the burden to establish this error on appeal.
The appellant also contends the Tribunal wrongly applied the DF Act, particularly in the way the Tribunal considered s 4 of the DF Act. If established, this would be an error on a question of law on the basis the Tribunal applied a wrong legal principle: see Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [38]-[53].
Sometimes it is difficult for self-represented appellants to clearly express their grounds of appeal and it may be appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided on the appeal and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal: see Cominos v Di Rico [2016] NSWCATAP 5 at [13]. As a matter of caution, we have followed that process in this case. We do not consider from the materials filed by the appellant or the submissions any other question of law would be relevant. Nor do we consider that any basis for seeking leave under Clause 12 of Schedule 4 of the NCAT Act has been identified.

[9]

Tribunal misapplied provisions of the DF Act

The appellant submitted the Tribunal was over-reliant on the provisions of the DF Act (s 4(a)-(d)) in finding that the fence was not repairable.
Section 4 of the DF Act provides: 4 Determination as to "sufficient dividing fence" In any proceedings under this Act, the Local Court or the Civil and Administrative Tribunal is to consider all the circumstances of the case when determining the standard for a sufficient dividing fence for the purposes of this Act, including the following: (a) the existing dividing fence (if any), (b) the purposes for which the adjoining lands are used or intended to be used, (c) the privacy or other concerns of the adjoining land owners, (d) the kind of dividing fence usual in the locality, (e) any policy or code relating to dividing fences adopted by the council of the local government area in which the adjoining lands are situated, (f) any relevant environmental planning instrument relating to the adjoining lands or to the locality in which they are situated, (g) in the case of a dividing fence affecting land the subject of a lease under the Western Lands Act 1901 , any order in force under section 18A of that Act immediately before the repeal of that Act.
In order for the Tribunal to have jurisdiction to determine the dispute, the Tribunal must satisfy itself as to whether the fence is "sufficient" or not at the time of the hearing: Purcell v Chadwick [2018] NSWCATAP 250. This was explained by the Tribunal to the parties at T1:10:38.
Irrespective of the reason why the fence could not be "resurrected" either because it had been damaged by floods (as contended by the respondent) or removed and damaged by the respondent (as contended by the appellant), the Tribunal was required to be satisfied that at the time of determining the application, whether the fence was sufficient or not sufficient.
There was no issue that by the time of the hearing the fence had mostly (if not completely) been removed. This was consistent with the appellant's written submission before the Tribunal which stated: The boundary fence was completely removed by the Connors without my knowledge till I saw it on 23rd Feb 2023 of what had been done ….. The Connors intentionally removed a repairable fence and I have repaired it every time it was necessary prior to the Connors become my eastern neighbours. They took advantage of a situation to forfill (sic) the opportunity to have the boundary fence like all their other improvements that the Connors have done on the farm in a short time they have owned it.
At T1:30:36 the appellant says in answer to a question from the Tribunal as to whether there is a sufficient fence there or not now, the appellant says: It's not. It's not sufficient. It's it's. It's the Connors.
At T 02:54:29 the Tribunal found that there was not a sufficient fence and at T 2:54:42 the Tribunal found that the fence could not be "resurrected" as at the time of the hearing. The Tribunal commented to the effect that it was not necessary to decide whether it was (previously) able to be resurrected, the relevant date was the date of the hearing and the Tribunal was satisfied at the date of the hearing that it could not be resurrected (T:2:54:42) and as such the fence was not sufficient (T2:54:58).
The appellant's submission that a legal principle was misapplied because the Tribunal had an "over reliance" on the DF Act is misconceived as the sufficiency of the fence under the DF Act at the time of the hearing was a fact that the Tribunal had to be satisfied of, before having jurisdiction to determine the dispute.
Accordingly we reject the submission that the Tribunal has wrongly applied the provisions of the DF Act.

[11]

The Tribunal failed to understand or find that the respondent had destroyed the fence by removing it and this limited the Tribunal's decision

A finding as to whether there was a negligent or deliberate act by an adjoining owner is relevant on the question of the appropriate proportions of contributions to the cost of the new fence (s 8 of the DF Act).
The Tribunal has found at T3:04:15 that the parties are to contribute to the costs equally and at T3:05:17 any increase in costs from B& K Rural would also need to be shared equally.
The appellant stated at T 1:25:29: I don't think I should be contributing anything to the fence. I'll tell you why. Because I've been repairing that fence for 32 years." At T:1:26: 29, the appellant says: "It was demolished."
Also at about T 1:333:23 the appellant says: I think it's very unfair. Unjust. That I should be asked to contribute anything because all my materials were there.
Also at T 1:58:41 the appellant says: About me contributing, I don't think I should be contributing at all because… At 1:58:47 My fence was pulled down by the corners even though they say that nature didn't nature. At T1:58:55 And it could have been repaired and had always got repaired.
The appellant contended that the fence could have been repaired as it always had been, but the respondent removed it. We consider that the appellant was also contending before the Tribunal that given the repairs done by the appellant over the years, including provision of steel posts at his cost, that the value of the repairs was destroyed by the respondent and therefore it was unfair for the appellant to contribute to the new fence.
At T3:6:15 and T3:08:14 the Tribunal invited submissions regarding the form of order, having said at T3:07:37 that he proposes equal contributions.
The appellant does not make any further submission on the issue of apportionment, but just says at T3:08:38: I'm not agreeing to. I'm not agreeing to any of it really. I find it difficult to accept that you made this judgement.
We are satisfied that the Tribunal gave the appellant reasonable opportunity to be heard on the issue of contribution to the cost of the fencing order and therefore we are satisfied the appellant was afforded procedural fairness.

Schofield v Connors

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Judgment (15 paragraphs)

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