Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bennett v Hawley [2021] NSWCATAP 71 Hearing dates: 11 February 2021 Date of orders: 24 March 2021 Decision date: 24 March 2021 Jurisdiction: Appeal Panel Before: S. Westgarth, Deputy President J Kearney, Senior Member Decision: (1) Leave to appeal is refused; and (2) The appeal is dismissed Catchwords: APPEAL – from finding of fact – whether against weight of evidence – whether substantial miscarriage of justice Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Dividing Fences Act 1991 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Larney v Johannson [2013] NSWCA 409 Texts Cited: None cited Category: Principal judgment Parties: Russell Bennett (Appellant) Graeme Hawley (Respondent) Representation: B Monkton (Appellant) Respondent (Self Represented) File Number(s): 2020/00371145 (AP 20/46479) Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: NA Date of Decision: 19 October 2020 Before: Member W Priestley File Number(s): COM20/14565 reasons for decision Introduction 1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 against a decision made in the Consumer and Commercial Division of the Tribunal on 19 October 2020. 2. At the appeal panel hearing the Appellant was represented by Mr B Monkton who is a friend of the Appellant. The Respondent represented himself. The same appearances occurred in the original Tribunal hearing. 3. For the reasons set out below, we have decided to refuse to grant leave to appeal and to dismiss the appeal. 4. Background 5. The Appellant and Respondent are the owners of adjoining land in the northern rivers district of NSW. Both blocks are rural land zoned for primary production. The Respondent's land is situated to the immediate north of the Appellant's land. The length of the boundary between them was agreed to be 782.5 metres in length. 6. The Respondent proposed a fence be constructed to divide the land. The Appellant opposed that proposal. 7. Tribunal Proceedings and Decision 8. On 26 March 2020 the Respondent lodged an application with the Tribunal seeking an order under the Dividing Fences Act, 1991 ("the Act") that fencing work to the value of $9,462.20 be carried out and that the Appellant contribute equally to the cost of it. The fence proposed was to be constructed of concrete posts with 3 strands of plain wire rather than the traditional 5 strands of barb wire to minimise the impact on native fauna. A fencing notice to the effect had been served on the Appellant on 18 February 2020. 9. Documents were exchanged by the parties in accordance with directions and oral evidence and cross examination occurred at the hearing. 10. The Appellant was granted leave for Bruce Monkton to represent him at the hearing. An earlier application that Richard Monkton represent him had been refused. Although this aspect was a subject raised in the appeal papers, we did not understand it to be a ground of appeal. 11. At the original Tribunal hearing, the Appellant contended that the Tribunal did not have jurisdiction to hear the application. This was argued on a number of grounds. The Tribunal found it did have jurisdiction to hear and determine the matter and that finding is not challenged in this appeal. 12. The Appellant opposed the application on a number of other grounds. The Appellant argued that that no fence was necessary and the design of the fence proposed by the Respondent was not the kind of fence usual in the locality. 13. The primary issue argued was that no dividing fence between the two blocks of land was needed - see s.14(g) of the Act. 14. In its reasons, the Tribunal noted that the parties had been in a high degree of conflict for some time. The submissions contained serious allegations of criminal conduct. Given the unfortunate level of animosity between the parties, the Tribunal also treated each party's evidence with caution. 15. The Tribunal examined the issues in s.4 of the Act and found it was unable to conclude whether there was previously any fence on the boundary. The Tribunal also found that both parties used the land for residential purposes. The Respondent also used it to operate an organic tea tree farm and the Appellant for recreational purposes. 16. The Tribunal accepted the evidence of the Respondent that he wished to avoid trespass on his land. It found there were incursions onto his land which were more likely to be from the Appellant's land than anywhere else. The Respondent had concerns also because he discovered a cannabis plantation was being cultivated on his land, which he reported to police. None of these factual matters were disputed by the Appellant. The Appellant stated that he was not involved in the growing of cannabis. 17. Importantly, the Tribunal concluded that a fence was required to divide the parties adjoining land. 18. As to the appropriate standard of the dividing fence the Appellant disputed the proposed design (concrete posts and 3 strands of unbarbed wire) but did not provide a quote for a fence with an alternative design, or any other evidence to support this argument that timber posts are more appropriate. The Appellant argued that the construction of the fence would disturb the area's significant environmental value and had serious concerns about the effect of the proposed fence on native animal populations The Tribunal accepted the Respondent's proposed design as satisfying the standard for a sufficient dividing fence. 19. The Tribunal found the Appellant liable to contribute to the cost of the proposed fencing work and made an order for the Appellant to pay half the cost. 20. The Tribunal also found that the clearing of the fencing line on the Appellant's side of the boundary should be borne by the Respondent. There was no appeal from this finding. 21. By the time of the appeal panel hearing, the dividing fence the subject of the order had been completed. 22. The Appeal - Submissions and Evidence 23. In deciding the appeal, we have had regard to the following: 1. The Notice of Appeal filed 4 November 2020 and attached documents which included a lengthy written document which appears to be by way of written submissions with photographs and statements, some clearly obtained after the decision. 2. The Appellant's written submissions and other documents from the Tribunal hearing. 3. The Respondent's formal reply to the appeal with attachments, some documents also clearly post-dating the Tribunal's decision. 4. An email from the Respondent dated 11 November 2020 with attached email from the Appellant dated 25 November 2020. 5. Another document from the Appellant dated 27 January 2021 which appears to be grounds of the appeal. 6. An email from the Respondent dated 11 November 2020 with attached letter dated 7 January 2021. 1. Grounds of Appeal 2. The Notice of Appeal was lodged 4 November 2020 and is within the 28 day time specified in clause 25(4) of the Civil and Administrative Tribunal Rules 2014 "the Rules". 3. On 20 November 2020 the application for a stay of the order made 19 October 20 was refused by the appeal panel constituted by S Westgarth, Deputy President although subsidiary orders regarding payment of the invoice were made. These are not relevant to the appeal. 4. In determining the appeal, we have borne in mind that the Appellant is an unrepresented litigant and that we should consider whether any appealable error arises from his grounds of appeal, the material provided and the decision of the Tribunal: Cominos v Di Rico [2016] NSWCATAP 5 at [13]. In doing so, we must, of course, afford procedural fairness to the respondent. 5. Doing the best we can from the material supplied by the Appellant, in our view the following matters do raise arguable grounds of appeal 1. The Appellant said that evidence regarding the necessity for the fence namely livestock control was given too much weight. 2. The Tribunal should not have accepted the quote by the Respondent's fencing contractor. 3. The Appellant said the evidence regarding the fence which existed in the past should not have been allowed. 1. The Appellant raised other issues in his papers or in oral submissions but we consider these do not constitute grounds of appeal for the reasons stated. The issues raised were: 1. Work done on the Appellant's property pursuant to the Tribunal order constituted encroachment by the Respondent's contractor on the Appellant's property – we note that this is a post-decision issue and not a matter relevant to this appeal. 2. The Appellant said the hearing was unfair, however there was no supporting material for this argument in particular neither party provided us with a copy of the sound recording or transcript of the hearing on 16 September 2020, despite Directions being made to that effect on 20 November 2020 by the appeal panel. 3. The Appellant said evidence was excluded at a preliminary hearing but then used later – but there were directions made about exchanging information, and there was no suggestion that the Appellant was taken by surprise. Further, there is no detail of which particular evidence is referred to. 4. The Appellant argued the Respondent has destroyed the Appellant's vegetation whilst constructing the fence – again this is a post-hearing event and not relevant to the appeal. 5. The Appellant said that the Respondent had constructed other fences on the other boundaries to his land, but this does not appear to be relevant to the appeal. 1. Examining the remaining grounds 1, 2 and 3 above, we note the Appellant has not identified any error of law and we could not discern any error of law otherwise from the relevant materials. Scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with permission (that is, the "leave") of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (NCAT Act). 2. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. 1. Statutory scheme 2. In Larney v Johannson [2013] NSWCA 409 the NSW Court of Appeal considered the Dividing Fences Act, 1991 and described it as follows (per Emmett JA) 26 According to its long title, the Act was passed "to provide for the apportionment of the cost of dividing fences". The pivotal provisions of the Act are to be found in Part 2, which consists of s 6 to s 10 inclusive and deals with liability for fencing work. 27 Section 6 is headed: "General principle - liability for fencing work". Section 6(1) relevantly provides that 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 that would result in the provision of a dividing fence of a standard not greater than the standard for a sufficient dividing fence. That provision applies whether or not a dividing fence already separates the adjoining lands. Under s 7, adjoining owners are liable to contribute in equal proportions to the carrying out of fencing work in respect of a dividing fence of a standard not greater than the standard for a sufficient dividing fence. 1. In this appeal, we are particularly concerned with ss. 4 and 14 which state: 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. 14 Orders as to fencing work (1) The Local Court or the Civil and Administrative Tribunal may, in respect of an application under this Act, make an order determining any one or more of the following: (a) (f) (g) that, in the circumstances, no dividing fence is required in respect of all or part of the boundary of the adjoining lands. Consideration of grounds of appeal 1. The remaining appeal grounds outlined above do not show any ground which would found an argument that the decision was not just and equitable. The objections relate only to the weight given to evidence. First ground of appeal 1. Dealing first with the finding regarding the necessity for the fence, the Appellant argued that livestock control was given too much weight. The critical finding appears at [18] of the reasons: 18 In the Tribunals view, there is a requirement for a fence to divide the parties' adjoining lands. The fence is required to deter people, motor vehicles and dogs, from entering onto the applicant's land from Mr Bennett's land. It is also required, to a much lesser extent, in the normal course of the applicant's rural activities such as commercially growing tea tree, as it will reduce livestock from occasionally wandering onto the respondent's land from the applicant's land 1. We accept that the last line just quoted contained a typographical error and should read "…onto the applicant's land from the respondent's land.." but nothing turns on that. The Tribunal had, correctly, characterised at [2] of its reasons that the then Respondent's (now the Appellant) argument was that no dividing fence was required, pursuant to s.14(g) of the Act. We also accept the Tribunal was making a discretionary decision under s.14 of the Act because of the use of the word "may" in s.14(g). 2. To succeed the Appellant must persuade us that he has suffered a substantial miscarriage of justice in terms of the test in Collins v Urban outlined above that there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant. 3. The Respondent has not persuaded us that he has suffered a substantial miscarriage of justice in those terms. When the Tribunal was considering the necessity or otherwise of the proposed dividing fence, its evaluation of the evidence of livestock control was not against the weight of the evidence. The Tribunal's reasons indicate it was just one of a range of factors taken into account and we can see no suggestion that it was given undue weight, that it was an irrelevant consideration or that the conclusion was so unreasonable as to suggest error. This is particularly so because it was observed at [18])in the reasons that livestock only "occasionally" wander onto the relevant land. 4. This ground of appeal fails. Second ground of appeal 1. The next ground of appeal is that the Tribunal should not have accepted the quote by the Respondent's fencing contractor. In essence, the Appellant disputed the finding by the Tribunal regarding the nature of the proposed fence. This relates to the analysis under s.4 of what is a "sufficient fence" in the circumstances. Again, we characterise the decision as discretionary because it was required to consider "all the circumstances" of the case including the matters in (a) to (f) (relevantly). 2. The Tribunal accepted evidence that a concrete post and 3 strand plain wire fence was sufficient in this case. The Tribunal was entitled to accept this evidence because, as the reasons record, although the Respondent contended timber posts are cheaper than concrete, there was no countervailing quote or any other evidence to support that contention. Essentially, the Tribunal found that the concrete posts are usual in the locality. The reasons disclose it did so because it accepted the Respondent's evidence in this regard. It was challenged in cross examination but the reason it was ultimately accepted was stated to be because it was inherently plausible and because of the straightforward way that he gave it under cross examination (see [19] of the reasons). 3. It appears to us that the Tribunal considered all the circumstances of the case when determining the standard for a sufficient dividing fence pursuant to Section 4 and in our view the Tribunal was entitled to accept the quote by the Respondent's fencing contractor. Principally this is because it was the only quote available (see [26]); but we also note there was lengthy consideration of the Appellant's criticisms of the quote, as recorded in the Tribunal's reasons, including the use of concrete posts and 3 strands of unbarbed wire (see [19] to [24]). 4. When considering this ground, the Appellant has not demonstrated a substantial miscarriage of justice in the sense outlined above. This ground of appeal must fail. Third ground of appeal 1. The Appellant said the evidence regarding the fence which existed in the past should not have been allowed. 2. The Tribunal at [11] outlined that there was contested evidence about the existence or otherwise of a previous fence. The Tribunal was unable to conclude whether there was previously a fence on the boundary. 3. At [12] the Tribunal accepted the Respondent's evidence that without seeking any contribution from the Appellant, he commenced constructing a concrete post and 3 strand wire fence along the boundary, but the concrete posts were destroyed. 4. The factual question of the existing dividing fence (if any) is one of the issues in s.4 of the Act. The matter for consideration was the nature of any existing fence relevant to the issue of what is "sufficient" in this case. It is a question of weight to be given to the fact of what existed. 5. It seems to us that the parts of evidence complained of do not go to the merits of the decision. The contested evidence concerned what may or may not have existed before and does not, in the circumstances of this case, bear heavily on the determination of what is a "sufficient" fence. The fact that the Tribunal considered no clearly identifiable fence existed at that time, was just one of the factors and did not deny the Appellant of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant. We cannot discern any substantial miscarriage of justice in the Tribunal's findings regarding the fence which existed in the past (if any). 6. This ground of appeal fails. Conclusion 1. The Appellant has not been successful on any ground of appeal. 2. We make the following orders: 1. Leave to appeal is refused; and 2. The appeal is dismissed ********** 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: 24 March 2021