I raise these concerns because I live alone, and I constantly worry about these past events. I have become fearful of what is going to happen next. I now feel insecure and am unable to freely enjoy living on my own property.

1. The appeal application, under the heading "orders sought if the appeal is successful", stated:

acknowledgement should be made of the lasting harm that the trespass into my property has caused me, an apology given, and compensation for the ongoing trauma I have experienced as result of trespass into my property.

1. The appellant cannot, in an appeal, seek orders which were not sought in the original application. Given the findings of the Original Tribunal that the appellant had not established any act of trespass, or other wrongdoing, by the respondents, there was no need to consider the impact of the events upon the appellant. The Appeal Tribunal notes that the appellant provided no relevant reliable or probative evidence of the alleged 'lasting harm' or 'trauma'.
2. However, even were the Tribunal able to make the orders sought by the appellant, it would not. However, there is simply no basis in law for such an assertion. There is no basis in law for the appellant's arguments.

The falsity of the respondents' statement that there was a stormwater emergency was not examined

1. As outlined above, the appellant's case placed a lot of emphasis on the argument that there was no stormwater emergency.
2. The question for the Appeal Tribunal is: should the Original Tribunal have addressed the question of whether there was, as matter of fact, a "stormwater emergency".
3. The Appeal Tribunal notes that the evidence of the appellant and her witness Mr Gillespie was that the man in the appellant's backyard on 3 October 2019 had said he was there to deal with an emergency.
4. The appellant was not able to clearly explain why this was an issue which should be considered by the tribunal. It appears from her evidence and material submitted that the appellant believes that if she can establish that there was no emergency on 3 October 2019, that this somehow establishes that the first respondent unlawfully allowed the workers employed by the ACT Government onto her property. This is not the case. Even if the appellant was able to establish, as a matter of fact, that there was no emergency, this still would provide no basis in law for her assertion that the respondents allowed the worker to enter the appellant's property in breached a duty of care to her or amounted to a trespass or a conspiracy to trespass by the first respondent.
5. In her submission to the tribunal prepared for the original hearing, the appellant stated:

The second instance was one of trespass. When I came home at lunchtime on 3rd October 2019, after being away for a couple of hours walking my dog, I was astounded and frightened to find a man standing in the middle of my backyard looking at the back of my house. He appeared surprised to see me. He said he was on my property deal with the storm water emergency. There was clearly no storm water emergency as the weather was warm and dry in Canberra had been in drought for a significant time. There was another man standing on Marc's side of the fence and I observed that Marc was standing further away, apparently listening but Marc took no part in the conversation.

1. In a written statement dated 18 June 2021, Mr Gillespie stated that he was present when the appellant returned to her home on 3 October 2019 and found a man standing in her backyard. At paragraph 4 of that statement he said the man: "subsequently claimed that he was there to inspect the stormwater pipe because of a stormwater emergency."
2. In the appeal hearing both the appellant and Mr Gillespie gave different evidence from that in their written statements and oral evidence to the Original Tribunal. The appellant said: "The emergency is only respondents say that the - no more anymore in the government say that is urgent or that is emergency." (errors in original) When questioned by the Appeal Tribunal about the written statement the appellant said she did not remember the man in her backyard saying this. Mr Gillespie stated in the appeal hearing that his written statement was not correct.
3. The respondents in the original hearing and again in the appeal hearing gave a clear explanation of what had happened on 3 October 2019. The evidence of the email correspondence between the parties and the ACT Government is that the ACT Government was acting lawfully within the provisions of the Utilities Act 2000. The Appeal Tribunal finds that the appellant's arguments are misconceived and provide no basis for a finding that there was no stormwater emergency within the provisions of the Utility Act; or that the respondents were untruthful in their evidence as to their actions.
4. The appellant's contention that the first respondent knew the person who entered the appellants backyard on 3 October 2019, or that he had received special treatment by officers of the ACT Government are fanciful, offensive and not supported by the evidence.

Bias or discretionary error arising from member's comment about false evidence

1. This ground appears in the "List of errors of fact, law, or discretionary errors", but is not addressed in written submissions, submissions made in the appeal hearing or evidence provided by the appellant. The appellant made no submissions as to how a bias or discretionary error arose or could be demonstrated nor how it affected the outcome of the original hearing.
2. In submissions made during the appeal hearing, the appellant argued that the evidence of the builder, who undertook the renovations to the respondents' premises and who oversaw the construction of the driveway should not have been accepted by the Original Tribunal. We have carefully reviewed the comments of the senior member, and note that she expressed some concerns that the builder was not an "independent witness", but observed that:

I understand he is not an independent expert because he was engaged by the respondents, but there is no assumption that I can draw that he is unreliable, and Ms Zeng had an opportunity to cross-examine him and chose not to do so.

So, we have his evidence. It would be ideal if we had an independent expert to address what were really technical issues which were in dispute about how the water flowed off the new driveway and whether that constituted a flooding risk. But, unfortunately, we did not have any other expert evidence and so really the primary evidence before me were the photographs that the parties had submitted. And I could see from those photographs that there was, indeed, a drain. I did take into account Mr Connor's evidence but, as I say, it would be preferable to have had an independent expert

1. The Original Tribunal acknowledged the difficulties of relying upon the builder's evidence and explained why she did and to what extent. We see no error in this approach.
2. In any case, the appellant provided no expert evidence at all with regards to the construction of the driveway or the flow of water over or from the driveway to either the original or appeal hearing. The appellant has the task of providing relevant, reliable and probative evidence to fulfill the onus of proof of each of the matters she asserts. She has failed to do so. Thus, even should the Appeal Tribunal reject the evidence of the builder accepted by the Original Tribunal, the appellant has not satisfied the onus of proof because she provided no alternative.

The issue of the driveway as an ongoing nuisance should have been further considered - Need for the driveway to be approved

1. The appellant provided no new evidence in relation to water runoff from the driveway creating a nuisance, and no evidence as to whether there was a requirement for the driveway to be approved by the relevant government department. The appellant made no submissions in relation to the factual or legal basis for her apparent assertion that a failure to approve the driveway automatically established that the runoff was a nuisance. Once again, the Appeal Tribunal notes that the onus is on the appellant to provide the evidence to establish the matter she asserts on the balance of probabilities.
2. Further, as was pointed out by the Original Tribunal, to the extent that the appellant considers that the driveway may require building or development approval, that is a matter she can pursue through ACTPLA. It is not a matter that the tribunal can properly consider in a civil proceeding.

The confusion about the appellant withdrawing the claim in relation to trespass in October 2016

1. The appellant made submissions that the Original Tribunal had made an error in determining that the appellant had withdrawn that part of her original application which related to the trespass alleged to have occurred in October 2016. The appellant requested that the Appeal Tribunal "investigate this further".
2. We turn first to the transcript of the original hearing and reproduce in its entirety the relevant exchange between the Original Tribunal and the appellant:

SM: So I turned to that first situation October that Ms Zeng refers to and that is something that happened in September or October 2016 Ms Zeng said that while she was on holidays the respondents cut a channel in the concrete that was surrounding her garage, so between - close to their common fence. They cut a channel through that for the purpose of redirecting runoff and that, as a consequence, muddy water flowed over her property.

SM: I am just checking back with Ms Zeng to make sure that I have summed up what she is saying happened

SM: I am just checking. Is that correct? Have I understood correctly what you are saying, that the respondent cut a channel in that concrete?

Ms Zeng: Yes. Yes, in the corner of my garage. That is behind the - between the garage and their - because my garage is quite close to the boundary, there's only not much room. And before all the fence was broken and we ask them for permission because we wanted to improve on this. Because the garage is quite low, the water always running into it- into the garage. So, we wanted to put on there concrete against the garage to cover a bit over it so the water not run into - that corner between - the other side is their corner - their garage. So two garages between all that area. Between the two garages was very low. That is because the water running from the neighbours' backyard, come in between the garage.

SM: Alright. Can I ask you, Ms Zeng - this was something that was highlighted in your original application, but not so much in subsequent materials. I just wanted to check that it is still a ground that you are pursuing, or that you are seeking a remedy in relation to. Is that correct?

Ms Zeng: Sorry, I haven't got this one-this question. What ...

SM: The question is-and perhaps[the translator] can help me here. The question is that although this incident features very much in your application, there is not a lot in the subsequent materials in relation to it. I am just checking that it is something that you are still seeking a remedy in relation to.

Interpreter: Well, the concrete is in my side, so I just fix it so I can't say there are any possibilities for any remedy at this moment.

Ms Zeng: no. This is just the fact that in the past I described in this case. But inside that they cut a bit channel and channel was on my side. Because before the fence was broken. After that I build a new fence, so this is -I fix because on my side, dug myself.

SM: OK. So you are not pursuing that matter at this point?

Ms Zeng: No, just for the fact that in the past I said that. But I don't think any can't be fixed. I already fixed, I just put them back. It's all good. Yes.

SM: Alright. Well if you are happy to move on, I will do so, Ms Zeng, if it's not something that you - you say you have fixed it and if it's not something you want to pursue, that is fine, I can move on.

1. It is evident from the Original Tribunal's reasons that the Original Tribunal had formed the view that the appellant was not pressing the issue of the channel cut between the garages, and consequently it was not dealt with during the hearing. We have formed the view that some confusion has arisen from the use of the word 'remedy' and accept that the appellant may not have intended that the matter not be dealt with.
2. Accordingly, we have considered the evidence provided in relation to this issue by the applicant/appellant in both the original application and the appeal.
3. The original application in a written submission by the appellant states the first incident:

occurred at some time during a period when I was away on holiday for three weeks in October 2016. When I returned home, I found that a channel had been cut into my property through the concrete which surrounds my garage. The purpose of this activity was apparent. It was to allow water to flow from his property into mine. This was very clear - given that the concrete surface on my property was stained by muddy water deposits which had entered my property through the channel he had cut.

1. A written statement by Mr Gillespie dated 18 June 2021, states at paragraph 2:

the channel cut into the concrete besides Su's garage by her neighbour directs rainwater runoff from the neighbour's place directly on Su's property. It was done while Su was away for several weeks in 2016 and discovered on return home.

1. In their written response, the respondents stated:

in September 2016, Paul Gillespie and Su Zeng both resided at 53 Wakool Ct Kaleen. Prior to them leaving for a holiday in October 2016, they spent several hours into the night on our property (55 Wakool Ct Kaleen) digging a trench between our garages and laying a section of concrete along the edge of their garage.

We verbally agreed to this temporary access to our property on the condition that works along the boundary did not block the natural flow of drainage and stormwater across the property between garages, and that it would be left tidy.

However, Paul and Su laid concrete and dug up soil which blocked the path that previously allowed water to drain away between the two garages. Paul and Su then left for the holiday.

The work performed interfered with the natural drainage and flow of stormwater over the existing topography. The soil left behind also made the area a boggy mess which took several days to dry out.

I took steps to rectify the immediate situation and spent several days clearing the excess mud and relaying new decorative stone mulch to restore the area.

When Paul and Su return from their holiday, I spoke with Paul and discussed the exceptional rain event and explained the rectification work to address this issue. At the time of discussion, Paul did not raise any concerns with me.

Noting that since this event back in 2016, Paul and Su have conducted more concrete works on the boundary between the two properties.

1. The respondents provided photographic evidence to support their written submissions. The respondents gave evidence that the concreting work done by the appellant prior to her holiday in late 2019 extended into the respondents' property and that only that concrete which was in their property was removed by them. The respondent denied any act of trespass and stated that he had cut a channel to alter the water flow and he denied that he had accessed the appellant's property.
2. The photographic evidence did not support the contentions of the appellant.
3. The materials provided by the appellant in accordance with the directions made on 8 November 2021contained further written submissions restating the fact that the respondents had cut a channel in the concrete between the two garages, that they had done so in order to alter the water flow and that the act of cutting channel into the concrete constituted an act of trespass. The appellant also reproduced the respondents' photographic evidence.
4. The appellant made no submissions relating to the law of trespass.
5. The evidence provided by the appellant, both to the Original Tribunal and the Appeal Tribunal, even taken at its highest, does not establish, on the balance of probabilities that the respondents had entered the appellants land when adjusting the concreting work performed by the appellant. The appellant could not have succeeded on this ground. Consequently, the failure by the Original Tribunal to consider this issue had not resulted in an erroneous conclusion.

The appellant was not given a chance to conclude her case

1. In her written submissions for this appeal the appellant made the following points:

(a) The email from the ACAT had specified that a whole day was set aside for the hearing and the appellant would have "plenty of time to present the details of my case" - the email was not produced by the appellant.

(b) The Tribunal member rushed the process and finished the hearing abruptly.

(c) The appellant was not given an opportunity to read a written summary of her case, which she had prepared for the hearing.

1. The transcript of the original hearing shows that at approximately 12:30pm the following exchange took place:

Senior Member: Look, is there anything else that either of you would like to say on this final issue? If not, then what I might do is I will pause for maybe 10 minutes while I consider my decision. So is there anything else you would like to say by way of summing up?

Ms Zeng: will you -will you, needless to say as you know, as my English is not my first language. I probably - everything I do now, what I-I probably say something you don't understand, so if you will - have you read this?

1. The senior member then indicated that "at a quarter to I will come back and I will deliver a decision". The matter was adjourned at 12:33pm. The matter resumed at 12:44pm and the senior member delivered her decision with brief reasons.
2. We accept that there may have been some confusion on the appellant's part as to how long the hearing runs for.
3. Nonetheless, it is clear from the transcript that the process followed by the senior member was explained to the parties and the parties were asked whether they had anything further to say by way of summing up. The appellant has not made out this part of the appeal.

1. The appellant and her support person appear to have misunderstood the role of the tribunal.
2. This matter was, appropriately, brought in the tribunal's civil dispute jurisdiction. Civil disputes are actions brought against persons to remedy a private wrong. In deciding civil claims, the tribunal exercises the same jurisdiction and powers as the Magistrates Court sitting in its civil jurisdiction,[7] and while it takes a flexible approach to process,[8] it must still act in a way that is logically probative.[9] The substantive legal elements of each cause of action must be addressed in a tribunal in the same way that they must in a Court.
3. In any civil claim, the applicant/appellant bears the onus of proof. The means that the appellant had to prove her case on the 'balance of probabilities' - and to do this she needed to provide relevant, reliable and probative evidence in relation to each of the issues raised. It is not the role of the tribunal to conduct investigations to establish the evidence which ought properly to have been provided by the appellant. Indeed, the tribunal would fall into error and if it did so, and even more so on appeal. The respondents were under no obligation to 'disprove' assertions that were not established by evidence.
4. Additionally, it is for the appellant to make out how the law should be applied to the alleged facts. While the tribunal can provide procedural guidance to parties and may, in a practical sense, provide procedural assistance to the parties to address the elements of a cause of action, the tribunal cannot assist them to make out a legal case where they have not articulated one.
5. Hence, while the Tribunal can empathise with the appellant's distress at returning home to find a strange man in her yard, it cannot impose upon a neighbour an obligation to prevent that danger where the appellant has failed to articulate the basis for any such obligation in law. The Tribunal can only make decisions that are within its jurisdiction and based on the law and the evidence. The appellant has failed to make such a case, either at first instance or on appeal.

1. The respondents have asked for an order under section 32(2)(c) of the ACAT Act that the appellant be directed to not to make a subsequent application.
2. In order to make such an order, the Tribunal would need to be satisfied that:

This section applies if the tribunal considers that an application, or part of an application is--

(a) frivolous or vexatious; or

(b) lacking in substance; or

(c) otherwise an abuse of process; or

(d) made by a person who has been dealt with by a court or tribunal in Australia as frivolous or vexatious.

1. It may be that the appellant's case was lacking in substance, in the sense that it was doomed to fail from the outset due to lack of evidence. However, we are not convinced it is necessary to make an order.
2. Trespass claims 1 and 2 relate to specified incidents on specific dates. In our view, these claims have now been finally determined. The principle of res judicata prohibits a party from bringing the same action a second time. Issue estoppel prevents a "state of law or fact" which has been determined in previous proceedings from being re-agitated in later proceedings.
3. If the driveway causes excess runoff that is a different issue. The appellant is entitled to bring an application in respect of any new cause of action in respect of any nuisance that has arisen from changed circumstances, but would of course be required to support such a claim with cogent evidence, lest it be struck out at an early stage.

1. We appreciate that the appellant is highly distressed, particularly in relation to the events surrounding the second trespass claim. However, none of the events give rise to a cause of action against the respondents. Moreover, the appellant has failed to identify any material error of fact or law by the Original Tribunal.
2. Accordingly, the Original Tribunal's orders from 27 September 2021 are confirmed and the appeal is dismissed.

[1] Casino Canberra Limited 051 204 114 v Kidman [2022] ACAT 22 at [46]

[2] [2022] ACAT 10

[3] De Flumeri v Canberra Discount Chemicals Pty Ltd & Anor [2016] ACAT 50

[4] De Flumeri v Canberra Discount Chemicals Pty Ltd & Anor [2016] ACAT 50 at [27]

[5] Australian Broadcasting Authority v Project Blue Sky Inc. & Ors (1996) 71 FCR 465 at 480-481

[6] Council of the City of Greater Wollongong v Cowan [1955] HCA 16; (1955) 93 CLR 435 at 444 per Dixon CJ

[7] ACT Civil and Administrative Tribunal Act 2008 section 22

[9] Sarbandi v Sharif [2017] ACAT 57 at 16 citing Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 at [97]