Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Minifie v Maxwell [2020] NSWCATAP 175 Hearing dates: 13 August 2020 Date of orders: 21 August 2020 Decision date: 21 August 2020 Jurisdiction: Appeal Panel Before: The Hon F Marks Principal Member D Robertson Senior Member Decision: (1) The appeal is upheld (2) The decision of Senior Member Boyce conveyed by email by the Deputy Registrar of the Tribunal to the appellant that he was functus officio in considering the application by the appellant to vary the order in the renewal proceedings requiring contribution by her is quashed (3) The renewal proceedings are remitted to Senior Member Boyce for determination by him of the appellant's application to vary the order for contribution of monies made against the appellant Catchwords: APPEALS – Right of Appeal – Scope of right – From "decision" - application to vary order for contribution under Dividing Fences Act – held Tribunal was not functus officio by reason of later Orders of Appeal Panel – appeal allowed – matter remitted for determination Legislation Cited: Civil and Administrative Tribunal Act (NSW) Cases Cited: Minifie v Maxwell [2020] NSWCATAP 30 Texts Cited: None cited Category: Principal judgment Parties: Jeanette Minifie (Appellant) Stuart Maxwell and Jieming Maxwell (Respondents) Representation: Solicitors: N Plumb (Agent) (Appellant) First Respondent (Respondents) File Number(s): AP 20/23390 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 25 May 2020 Before: P Boyce, Senior Member File Number(s): COM 19/04453 reasons for decision Background 1. The appellant in these proceedings is Jeanette Minifie. The respondents are Stuart and Jieming Maxwell. The parties own adjoining properties. Since at least December 2016 they have been in dispute concerning the construction of a dividing fence between their properties. The appellant instituted proceedings in this Tribunal which were determined on 28 August 2017 when Senior Member Charles made orders under the Dividing Fences Act. 2. In his orders Senior Member Charles described two sections of the proposed dividing fence in some detail including the material from which each section was to be constructed, the height, the style of fencing and the boundary line upon which each section was to be erected. Those orders also included protocols for the obtaining of a quotation and the manner in which agreement would be reached concerning the quotation. Each party was to pay one half of the costs of the fencing work. Subsequently, the orders were amended so that time for compliance was extended to 31 January 2018 and clarification was given concerning the identification of a licensed fencing contractor and recovery of any outstanding monies. 3. The appellant lodged an appeal from that decision which was subsequently withdrawn. On 29 September 2017 the appellant commenced to erect a fence adjacent to the common boundary, but on land owned by her, without consulting the respondents and in a manner which was inconsistent with the orders made. 4. The respondents then filed an application pursuant to clause 8 of Schedule 4 to the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) for renewal of the original proceedings and seeking orders that the fence constructed by the appellant be removed in its entirety at her expense and that contempt proceedings be instituted against her by reason of disregard for the orders previously made. Those contempt proceedings were not pursued. The proceedings brought by the respondents seeking renewal of the earlier proceedings are hereafter referred to as "the renewal proceedings." 5. The renewal proceedings came on for hearing before another Member, Senior Member Boyce. On 12 September 2019 Senior Member Boyce made orders intended, inter alia, to finalise the continuing disputation about the dividing fence and to put in place processes to ensure that it was erected, and that the appellant pay half the cost. The decision of Senior Member Boyce of 12 September 2019 1. In order to determine these appeal proceedings it is necessary to set out in some detail the orders made by Senior Member Boyce as amended by the decision of the Appeal Panel. 2. It is clear from his detailed reasons for decision that Senior Member Boyce was extensively informed concerning the underlying factual circumstances. He had conducted a view of the area where the dividing fence was to be constructed. His reasons for decision contain a comprehensive description of that area. For present purposes it is not necessary to repeat it. It is sufficient to observe that there were significant topographical problems associated with the construction of the dividing fence because of the existence of a rock-face, the fact that the land owned by the respondents is significantly higher than that of the appellant, and the existence of a number of pegs and nails driven into rock which purported to represent the common boundary between the properties of both parties. 3. Senior Member Boyce found that the fence which the appellant had erected was significantly inconsistent with the orders made by Senior Member Charles and he ordered that it be removed at the cost of the appellant to enable a dividing fence to be erected consistent with the orders previously made. 4. Senior Member Boyce then made orders with respect to the construction of the dividing fence, which amend the original orders made by Senior Member Charles. Relevant extracts are set out below (we have anonymised the parties' respective street addresses): (2) A new solid hardwood paling fence is to be constructed in two parts (as described in orders 2- 3 and 3 4 below) along a fencing line of approximately 12 to 13 metres being the common boundary of the applicant's [Ms Minifie's] property (46 XXX Street East Ryde) and the respondents' [Mr and Mrs Maxwell's] property (27 YYY Road East Ryde) as shown on the Survey of North Western Surveyors Reference No 12247 bearing date 17 July 2003 ("Survey"). (3) The first part of the fencing work the subject of order 2 is to relate to the western section of the common boundary as indicated on the Survey commencing from the 'peg' on the western boundary to the rock shelf where the existing retaining wall crosses the common boundary, a distance of approximately 6 metres (that is, at the building line of the two storey residence at 27 YYY Road East Ryde) and is to comprise the following elements: The whole of the first part of the fencing work is be; (i) No greater than 1 metre high, flat top hardwood paling picket fence fixed to hardwood rails and supported by steel posts concreted into core drilled holes; (ii) For the removal of doubt the picket style paling fence is a repeated pattern of palings with a paling, then a space for the width of a paling and then a picket, repeated for the length of the fence; (iii) The fence palings are to face the residence at 27 YYY Road and must be fixed from that face with the rails facing 24 XXX St East Ryde and are to be placed so that the face of the paling is on the boundary line and the fence is not to encroach on the respondents [Mr and Mrs Maxwell's] property. (4) The second part of the fencing work the subject of order 2 is to relate to the eastern section of the common boundary as indicated on the Survey commencing from where the common boundary intersects an existing brush fence located approximately 0.5 metres east of the common boundary between 44 XXX Street and 46 XXX Street and is to continue at a height of 1.8 metres above the ground where it is located until it intersects the rock shelf. The second part of the dividing fence is to be: (i) Not higher than 1.8 metres high closed hardwood flat top paling fence fixed to hardwood rails and supported by galvanised steel posts concreted into dug or core drilled holes; (ii) The fence palings are to face the residence at 24 XXX St East Ryde and fixed from that face with the rails facing 27 YYY Road East Ryde. (5) The respondents [Mr and Mrs Maxwell] are to obtain a current Quotation from All Hills Fencing of Quote Number Q12566 for fencing work set out in these orders on or before 30 September 2019 and are to provide a copy of the quotation to the applicant [Ms Minifie] within 7 days of receipt; … (7) The fencing work set out in these orders is to be completed in compliance with the above orders on or before 22 December 2019. (8) Mr and Mrs Maxwell will be solely responsible for engaging and giving direction to the fencing contractor; (9) Mr and Mrs Maxwell and Ms Minifie are to contribute equally to the cost of the fencing work the subject of these orders. (10) On completion of the fencing work Mr and Mrs Maxwell will pay the whole of the cost of the fencing work to the fencing contractor; (11) Ms Minifie will pay to Mr and Mrs Maxwell one half of the cost of the fencing work within seven (7) days of Mr and Mrs Maxwell serving Ms Minified with a copy of the fencing contractor's invoice and receipt for payment. If Ms Minifie does not pay her contribution to the cost of the fencing work as ordered, the Tribunal is to issue a money order in the amount of one half of the cost of the fencing works. Order (4) of the Appeal Panel decision of 2 March 2020 and later developments 1. The appellant instituted an appeal from the decision of Senior Member Boyce, which was dismissed by the Appeal Panel in a decision dated 2 March 2020: Minifie v Maxwell [2020] NSWCATAP 30. Because of delays occasioned by the appeal the Appeal Panel extended the time for the completion of certain steps directed to the finalisation of the erection of the dividing fence and payment by the appellant of her contribution. Significantly, the Appeal Panel ordered: (4) Any further application by either party to vary the orders of the Tribunal dated 12 September 2019 in Matters Com 19/04453 and Com 17/25445 in respect of time for compliance or otherwise is to be made in writing to the Tribunal and referred to Senior Member Boyce for determination, or if Senior Member Boyce is not available, a Principal Member of the Tribunal. 1. Time for compliance with the orders under appeal was extended by the Appeal Panel with the effect, relevantly, that the fencing work was to be completed on or before 15 May 2020. 2. On 25 March 2020 the appellant wrote to the Registrar seeking referral of certain matters to Senior Member Boyce under order (4) made by the Appeal Panel. These matters included the safety of the fence, length of the fence and the positioning of the fence. The respondents opposed any variation to orders previously made on 12 September 2019. On 29 April 2020 Senior Member Boyce directed both parties to file short submissions and to indicate why a hearing could not be dispensed with and the matter resolved on the basis of the submissions filed. Those directions were subsequently amended on 30 April 2020. 3. Senior Member Boyce issued a decision on 5 May 2020 in which he determined to deal with the appellant's application without conducting a hearing, and held that there was no jurisdiction to vary the orders previously made by him and which had been confirmed when the Appeal Panel dismissed the appeal from his decision. The Senior Member also said that even if he had jurisdiction to do so, he would decline to vary the orders as sought by the appellant "in circumstances where the orders contain no ambiguity." The Appellant has not brought any appeal from this decision. 4. It appears that the new dividing fence was completed on or around 8 May 2020. The contractor issued an invoice in the sum of $3,860 which was paid by the respondents pursuant to the orders originally made on 12 September 2019, half that amount now being payable by the appellant to the respondents pursuant to that order. The appellant's request of 15 May 2020 1. On 15 May, 2020 the appellant wrote to the Registrar of this Tribunal seeking a "stay or suspension" of her obligation to contribute to the cost of the dividing fence because the fencing work did not comply with the manner in which the fence was to be constructed as referred to in the orders of 12 September 2019. The appellant also asked the Tribunal to order that the respondents "rectify the non-compliant work I have identified hereunder in both sections of the fence so that it is fully compliant with the Orders as made." Significantly, the appellant sought an order that the amount payable by her for her contribution to the cost of the dividing fence be reduced to $184.80 by reason of the nature and extent of the fence which had been erected. 2. By email communication dated 20 May 2020 a Registry officer advised the appellant that the decisions of the Tribunal "are final and binding." The officer said that the Tribunal was unable to provide the appellant with legal advice with respect to the issues raised by her. The appellant's request of 22 May 2020 1. The appellant again wrote to the Registrar by email on 22 May 2020 at 10.23 am complaining that the matter had not been referred back to Senior Member Boyce or another member and asking that her application be reconsidered. She said in part "I am entitled to have referred by Order 4 of the Appeal Tribunal Decision of 2 March 2020" and then quoted from Order (4). At 12:27 pm that day a Deputy Registrar informed the appellant that her correspondence had been referred to Senior Member Boyce "for consideration." 2. On 25 May 2020 the Deputy Registrar informed the appellant by email that "A decision has been made in relation to these matters so the Tribunal and Member are functus officio. You will need to take your own legal advice as to how you can deal with the concerns you have raised." These appeal proceedings 1. These present appeal proceedings are constituted on their face as an appeal from the information conveyed to the appellant on 25 May 2020. We consider below whether the appeal was effectively brought against a decision of the Tribunal. 2. The grounds of appeal challenged the decision to refuse to deal with the appellant's application with specific reference to the outstanding issue of the amount of the contribution which the appellant should make to the costs of the erection of the fence. 3. We note that whether the Tribunal was functus officio, that is whether it had fulfilled its function or duty and was unable to act further or again, involves a question of law and an appeal lies as of right. 4. We add for completeness that the appellant filed a great deal of documentation which endeavoured to demonstrate that the fence as erected was not situated on the boundary of the adjoining properties and did not otherwise comply with the orders made. These documents included survey reports and photographs. The respondents filed an equal volume of material, all directed to establishing that the fence was, indeed, on the correct boundary line and was totally, or substantially, compliant. Was the Tribunal functus officio by reason of Order (4) of the Appeal Panel? 1. It is necessary to have regard to the provisions of Order (4). It is expressed to have a future operation and to apply to events which might occur in the future. The Order contemplates that there might be a "further application" by a party to seek a variation of the underlying orders. That variation may be directed to the time for compliance, which clearly contemplates accommodation of future events which might impact upon the date otherwise ordered for completion of the fence. Significantly, in describing the subject matter of the variation of the orders which might be sought the Appeal Panel specifically referred not only to time for compliance but also to any other matter by use of the words "or otherwise." 2. We understand the purpose and intent of Order (4) was to accommodate future circumstances which might require a variation of the orders made as confirmed and varied by the Appeal Panel. 3. One of those orders requires the appellant to pay one half of the cost of the dividing fence. It is that obligation to pay one half of the cost which the appellant asked to have varied in her email communication of 22 May 2020. We add for completeness that, in considering the request of the appellant contained in that email, it is appropriate to take into account the contents of her previous email of 15 May, 2020 which clearly refers to the quantum of her obligation to make a contribution to the cost of the dividing fence. To avoid doubt we would have come to the same conclusion in construing the provisions of the email communication of 22 May, 2020, namely that it sought in effect a variation of the costs contribution, even read without reference to the earlier email. 4. It is not necessary to descend into a detailed discussion of the principles of functus officio in determining whether the Tribunal was functus officio as at 22 May, 2020. The question is whether it had by then completed dealing with the underlying application for renewal by making orders which would completely determine the proceedings between the parties. In such a case it might be said that it no longer had any power to deal with the application made by the appellant on 22 May 2020. However, Order (4) made by the Appeal Panel clearly granted either party liberty to apply with respect to the matters described in the terms of that order. The use of the words "or otherwise" enabled an application to be made provided it was one which was directed to a variation of the orders already made. Such an application might extend to any matter which might arise in the future after the underlying orders had been made. Seen in this way, the Tribunal had not completely and finally dealt with the underlying orders. It was not functus officio with respect to the appellant's request for a variation of the order requiring her to pay for half the cost of the fence. 5. It follows that the information conveyed to the appellant by the Deputy Registrar on 25 May 2020 was incorrect, in a respect which constituted an error of law. Was there a decision from which an appeal can be brought? 1. We proceed on the basis that in determining these appeal proceedings we are engaged in the internal appeal jurisdiction of this Tribunal as provided for in section 32 of the CAT Act 32 Internal appeal jurisdiction of Tribunal (1) The Tribunal has internal appeal jurisdiction over— (a) any decision made by the Tribunal in proceedings for a general decision or administrative review decision, and (b) any decision made by a registrar of a kind that is declared by this Act or the procedural rules to be internally appealable for the purposes of this section. (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its internal appeal jurisdiction— (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings. (3) However, the internal appeal jurisdiction of the Tribunal does not extend to— (a) any decision of an Appeal Panel, or (b) any decision of the Tribunal in an external appeal, or (c) any decision of the Tribunal in proceedings for the exercise of its enforcement jurisdiction, or (d) any decision of the Tribunal in proceedings for the imposition of a civil penalty in exercise of its general jurisdiction. Note. The decisions above may be appealable to the Supreme Court and, in some cases in relation to civil penalty decisions made by the Tribunal (whether under this Act or enabling legislation), the District Court. See section 73 and Part 6. (4) An internally appealable decision is a decision of the Tribunal or a registrar over which the Tribunal has internal appeal jurisdiction. (5) An internal appeal is an appeal to the Tribunal against an internally appealable decision. (6) Subject to the procedural rules, if a decision of a registrar is an internally appealable decision, the provisions of this Act relating to the making and determination of an internal appeal are taken to apply as if— (a) any reference to the Tribunal at first instance (however expressed) included a reference to a registrar, and (b) any requirement concerning the granting of leave to appeal against particular kinds of decisions of the Tribunal or on particular grounds extended to decisions of the same kind made by a registrar or grounds of the same kind. 1. For present purposes it may be assumed that this is an internal appeal as defined in section 80 of the CAT Act. The ability to institute appeal proceedings will only respond to a decision which is appealable. This requires consideration of whether the information conveyed by the Deputy Registrar to the appellant constituted a "decision" of the Tribunal which can be the subject of an appeal. 2. The meaning of "decision" is to be found in section 5 of the CAT Act 5 Meaning of "decision" (1) In this Act, decision includes any of the following— (a) making, suspending, revoking or refusing to make an order or determination, (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission, (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument, (d) imposing a condition or restriction, (e) making a declaration, demand or requirement, (f) retaining, or refusing to deliver up, an article, (g) doing or refusing to do any other act or thing. (2) For the purposes of this Act— (a) a decision is made under enabling legislation or this Act if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enabling legislation or this Act, and (b) a decision that purports to be made under enabling legislation or this Act is taken to be a decision made under the enabling legislation or this Act even if the decision was beyond the power of the decision-maker to make, and (c) a refusal of a decision-maker to make a decision under enabling legislation or this Act because the decision-maker considers that the decision concerned cannot lawfully be made under the enabling legislation or this Act is taken to be a decision made under the enabling legislation or this Act to refuse to make the decision requested, and (d) a failure by a decision-maker to make a decision within the period specified by enabling legislation or this Act for making the decision is taken to be a decision by the decision-maker at the end of the period to refuse to make the decision. 1. We note that under section 5(2)(c) the refusal to make a decision because the decision-maker considers that the decision cannot lawfully be made is taken to be a decision to refuse to make the decision requested so as to come within section 5(1)(a) and thereby constitute a decision for the purposes of sections 32 and 80. 2. Arguably, in order to constitute an appealable decision it is necessary to identify the decision-maker. The meaning of "decision-maker" is found in section 6 of the CAT Act 6 Meaning of "decision-maker" (1) For the purposes of this Act, the decision-maker in relation to a decision is the person or body that makes (or is taken to have made) the decision for the purposes of enabling legislation or this Act. (2) The person or body specified by enabling legislation as a person or body whose decisions are reviewable or appealable is taken to be the only decision-maker in relation to the making of such a decision even if some other person or body also had a role in the making of the decision. 1. In her email communication of 22 May 2020 the Deputy Registrar informed the appellant that her request had been referred to Senior Member Boyce for his consideration. It may be inferred, therefore, that the response of 25 May 2020 was the response of Senior Member Boyce. In so concluding we note that the functions of registrars are limited generally by section 23 of the CAT Act and more particularly by Rule 41 of the Civil and Administrative Tribunal Rules 2014 41 Registrars may make certain interlocutory decisions of Tribunal (1) A registrar may, at the direction of the President or a Division Head, make any of the following interlocutory decisions of the Tribunal on behalf of the Tribunal— (a) a decision under section 41 of the Act concerning the extension of the period of time for the doing of a thing under legislation in connection with proceedings, (b) a decision under section 45 of the Act concerning the granting or revocation of leave for a person to represent a party to proceedings, (c) a decision under section 45(4)(a) or (b) of the Act concerning the appointment of a person to act as guardian ad litem for a party, or represent a party, in proceedings, (d) a decision under section 45(4)(c) of the Act concerning the making of an order for a party to be separately represented in proceedings, (e) a decision under section 55(1)(a) or (d) of the Act concerning the dismissal of proceedings, (f) a decision under section 64(1)(d) of the Act concerning the making of an order prohibiting or restricting the disclosure of evidence or documents in proceedings, (g) a decision under clause 10 of Schedule 6 (Guardianship Division) to the Act concerning the granting of consent for the withdrawal of an application in proceedings, (h) a decision concerning the setting aside of a summons or excusing compliance with a summons in connection with proceedings, (i) a decision concerning the granting of access to documents or things produced in compliance with a summons in proceedings. Note. See also clause 8 (Certain guardianship functions may be exercised by registrar) of Schedule 6 to the Act. (1A) Proceedings for a decision by a registrar under subrule (1) are prescribed for the purposes of section 50(1)(d) of the Act. Note. Section 50(1)(d) of the Act enables the Tribunal rules to prescribe circumstances in which hearings are not required for proceedings in the Tribunal. (2) The President or a Division Head may direct a registrar to refer the making of such a decision in a particular matter to the Tribunal. The registrar must comply with such a direction. (3) A registrar may refer a particular matter to the Tribunal if the registrar considers it would be more appropriate for the Tribunal to deal with the matter. (4) A decision of the Tribunal made by a registrar under this rule is declared to be internally appellable for the purposes of section 32 of the Act if the decision would have been an internally appellable decision for the purposes of the Act had it been made by the Tribunal rather than the registrar. Note. Section 32(6) of the Act provides that if a decision of a registrar is an internally appealable decision, the provisions of the Act relating to the making and determination of an internal appeal are taken to apply as if— (a) any reference to the Tribunal at first instance (however expressed) included a reference to a registrar, and (b) any requirement concerning the granting of leave to appeal against particular kinds of decisions of the Tribunal or on particular grounds extended to decisions of the same kind made by a registrar or grounds of the same kind. Section 80(2) of the Act requires the leave of the Appeal Panel for an internal appeal against an interlocutory decision of the Tribunal at first instance. 1. It may be presumed that the Deputy Registrar would not undertake any function which she was not authorised to fulfil under Rule 41, or under any provision of the CAT Act. Prima facie the Deputy Registrar would not have been authorised to have decided that the Tribunal was functus officio in the manner described in her email communication to the appellant. This strengthens our conclusion that the decision must have been made by Senior Member Boyce. 2. It is uncontroversial that the Dividing Fences Act is "enabling legislation" for the purpose of the CAT Act. 3. Our discussion of the matters referred to above leads us to conclude that the decision of Senior Member Boyce conveyed to the appellant by email communication from the Deputy Registrar on 25 May, 2020 was an appealable decision of the Tribunal and one which can properly form the basis of the internal appeal proceedings before us. The decision was an ancillary decision as defined in section 4 of the CAT Act. By section 80 of that Act an appeal lies as of right because the decision is an ancillary decision and involves a question of law. Conclusion 1. Having found 1. that these appeal proceedings are properly before us and constitute an appeal by the appellant from the decision of Senior Member Boyce that he was functus officio 2. that by reason of Order (4) of the Appeal Panel in Minifie v Maxwell the Senior Member was not functus officio and had therefore fallen into error and 3. that error is an error in law it follows that the appeal should be upheld and the decision of the Senior Member quashed. 1. Having regard to the convoluted history of these proceedings, and what we perceive to be the underlying dislike that each of the parties has for the other, as was demonstrated to us during the course of the hearing, it is important that the proceedings be finalised as efficiently and as soon as possible. We endeavoured to engage the parties in a discussion about the underlying state of the fence. Our impression is that a consideration of whether or not there has been compliance or substantial compliance with the Orders of the Tribunal in the erection of the fence and whether the Order requiring contribution of one half of the cost should be varied accordingly will require some underlying knowledge of the properties and the topography. Having regard to his long association with the proceedings and the fact that he has had the advantage of a view of the properties it seems appropriate that Senior Member Boyce be tasked with the ultimate determination of the proceedings. 2. The proceedings should be remitted to Senior Member Boyce for determination by him of the appellant's application to vary the order for contribution of monies made against her. Orders 1. We make the following orders 1. The appeal is upheld 2. The decision of Senior Member Boyce conveyed by email by the Deputy Registrar of the Tribunal to the appellant that he was functus officio in considering the application by the appellant to vary the order in the renewal proceedings requiring contribution by her is quashed 3. The renewal proceedings are remitted to Senior Member Boyce for determination by him of the appellant's application to vary the order for contribution of monies made against the appellant ********** 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: 21 August 2020