Schofield v Connors

Reply to the appeal

1. The respondent states in his Reply filed 29 July 2024: 1. The appellant's documents before the Tribunal were filed and served late; 2. The Tribunal reviewed the 18 pages submitted by the appellant at the hearing which was marked as Exhibit 1; 3. The Tribunal asked the appellant to highlight pertinent facts from the documents; 4. The Tribunal considered the two quotes for the fencing work; 5. The Tribunal considered all the evidence presented at the hearing and made the Decision on that evidence; 6. There was evidence before the Tribunal that the fence was destroyed by flooding and the fence was not repairable.

Material before the Appeal Panel

1. In addition to the Amended Notice of Appeal. the appellant relies on documents filed on 26 July 2024, 29 July 2024, 31 July 2024, 21 August 2024, 6 September 2024, 12 September 2024 and a transcript and sound recording on a USB drive of the hearing both filed on 14 October 2024.
2. In addition to the Reply and attached documents, the respondent relies on a bundle of documents filed 5 September 2024.
3. The parties confirmed they had received each other's documents on the appeal.
4. The parties also confirmed that the evidence before the Tribunal was contained in the appeal papers as follows: 1. The appellant's evidence is at the back of the respondent's bundle dated 5 September 2024 and is page-numbered 2/18 - 18/18. The appellant confirmed that the original page 1 of 18 before the Tribunal, was a cover page only. 2. The respondent's evidence is contained in the respondent's bundle dated 5 September 2024 and is at pages numbered 1/32 to 32/32.

Background

1. We summarise the main background which is relevant to the appeal as follows. 1. The parties own adjoining rural properties. 2. The appellant purchased his property (no 606) about 32 years ago; the respondent purchased his property (no 682) in 2021. 3. This dispute arises from the 472m boundary fence between the two properties; 4. There was no specific evidence of the age of the fence, but the appellant stated that when he purchased the property the fence was already in situ and since that time, he has done regular repairs which have been effective; 5. A notice to carry out fencing work was given by the respondent to the appellant dated 27 October 2023 attaching two quotes for a new fence on their common boundary of about 470m; 6. One quote was from B & K Rural for $13,917.20; the second quote was for $38,500; 7. The appellant did not agree to a new fence or to pay a contribution towards the new fence; 8. The respondent filed the proceedings in the Tribunal on 7 December 2023; 9. Both parties appeared at the hearing on 24 June 2024 and the Decision was delivered that day with oral reasons commencing at T2:43:27.
2. There was no issue before the Tribunal as to the validity of the fencing notice nor the Tribunal's jurisdiction to determine the dispute under the DF Act.
3. For the purposes of the DF Act, the Tribunal determined that the fence on the common boundary was not sufficient (to use the language of the DF Act), and made an order for fencing work in accordance with the quote from B & K Rural and an order that the parties were liable to contribute 50% each to the cost.

Submissions

1. 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.
2. 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.

Scope and nature of Internal Appeals

1. 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].
2. 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.
3. 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.
4. 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).
5. 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.
6. 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.
7. 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].
8. 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.

Appellant was unable to properly explain his evidence or position because the Tribunal had his documents

1. The Tribunal Senior Member said in giving oral reasons for the Decision at T2:51:45 that the appellant's documents were not on the Tribunal file but the Tribunal had been given a copy, being 18 pages, during the hearing. We do not consider that the transcript establishes that the Tribunal failed to either give the appellant a reasonable opportunity to be heard or for the appellant to have his evidence considered at the hearing for the following reasons. 1. The transcript establishes in our view that the appellant as Speaker 3 was active in the proceedings and gave evidence and made submissions; 2. It would seem that at no time did the appellant seek the return of his documents to review them to assist himself to give his evidence or make his submissions before the Tribunal; 3. At the hearing of the appeal the appellant did not identify with any specificity what it was that he says he did not have an opportunity to explain to the Tribunal because the Tribunal Senior Member was holding his evidence.

Tribunal misapplied provisions of the DF Act

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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).
8. 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.
9. Accordingly we reject the submission that the Tribunal has wrongly applied the provisions of the DF Act.

Failure to consider two photos of the fence dated 15 November 2022

1. The appellant contends that the fence was destroyed by the respondent and not by flooding in November 2022 as contended by the respondent. The appellant relies on a photo dated 15 November 2022 (at page 12/18 of the appellant's documents) to establish that the fence was in situ as at 15 November 2022.
2. The transcript establishes that the Tribunal did consider the appellant's 15 November 2022 photos at T:05:43, where the Tribunal stated : "…So those two photos are taken on the 15Th…"
3. We therefore reject the submission that the Tribunal failed to consider these two photos of the appellant.

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

1. 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).
2. 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.
3. 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."
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.

Submission re late documents

1. To allay the expressed concerns of the appellant we wish to address the respondent's submission about the lateness of filing of the appellant's documents. The respondent submitted that the appellant had filed his documents late to the Tribunal, which were due to be filed on 2 February 2024. The appellant confirmed at T55.25- 59 the personal reasons why they were sent a few days later on Monday 5 February 2024. This was only a few days, and as the Tribunal hearing did not take place until 24 June 2024, we do not consider the short delay in sending the documents is relevant to this Appeal or is the reason why the documents may not have been on the file before the Tribunal at the hearing.

Conclusion

1. We are not satisfied that the Tribunal failed to afford procedural fairness to the appellant, nor are we satisfied the Tribunal wrongly applied the law and as such the appellant has not established on the balance of probabilities an error on a question of law.
2. Accordingly, the appeal does not succeed and the Appeal Panel declines to make the orders sought by the appellant in the Amended Notice of Appeal.
3. A stay of the Tribunals' orders of 24 June 2024 was in place pending finalisation of the appeal. As no further order will be made regarding a stay, the stay will end at the date of this appeal decision. However, we consider it necessary and appropriate to extend time for compliance with the Tribunal's Order 7 of 24 June that was required to be completed by 30 September 2024 and we will make an order to that effect. Pursuant to s 81 of the NCAT Act the Appeal Panel has power to extend time under s 41 of the NCAT Act.

Order 1. The appeal is dismissed. 2. The date for compliance with the Tribunal's Orders in 2023/00444197 dated 24 June 2024 in Order 7 is extended to 28 February 2025.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 December 2024