New South Wales Supreme Court CITATION : Alwiah v Watts & Anor [2004] NSWSC 948 HEARING DATE(S) : 15 October 2004 JUDGMENT DATE : 22 October 2004 JURISDICTION: Common Law Division JUDGMENT OF : Master Malpass at 1 DECISION : The summons is dismissed; the plaintiff is to pay the costs of the summons. CATCHWORDS : Dividing fence - structure of the Act - jurisdiction to make orders - jurisdiction of this court on appeal - misconceived appeal. LEGISLATION CITED : Dividing Fences Act 1991, ss4, 6, 14 Abeer Alwiah (Plaintiff) PARTIES : David Watts (First Defendant) Helen Watts (Second Defendant) FILE NUMBER(S) : SC 11716 of 2004 COUNSEL : Mr D Alexander (Plaintiff) In person (Defendants) SOLICITORS : N/A LOWER COURT Local Court JURISDICTION : LOWER COURT 231/04 FILE NUMBER(S) : LOWER COURT Clugston LCM JUDICIAL OFFICER : - 6 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Master Malpass 22 October 2004 11716 of 2004 Abeer Alwiah v David Watts & Anor JUDGMENT 1 Master: The plaintiff and the defendants are neighbours. There seems to have been a long-standing animosity between them. The plaintiff is the owner of 6 Shaw Close Barden Ridge. The defendants are the owners of 7 Bella Place Barden Ridge. The rear boundary of the defendants' property abuts part of the side boundary of the plaintiff's property. 2 The plaintiff was desirous of making changes to the existing common boundary fence arrangements. Broadly speaking, there were two aspects to the changes. One aspect concerned that part of the fencing arrangements that was described to be to the rear of the plaintiff's garage alignment. The other aspect concerned that part which was to the front of that alignment. This aspect related to what was the plaintiff's front yard area. It was contemplated that the height of the fence to the rear of the alignment be increased and that the retaining wall which stood to the front of it be replaced by a fence. 3 There was no prior consultation. The plaintiff served on the defendants a notice to carry out fencing work. The defendants did not accede to what was proposed. 4 The plaintiff brought an application under the Dividing Fences Act 1991 (the Act) in the Local Court. It was defended. On 12 May 2004, a hearing took place before Clugston LCM. All parties were unrepresented. 5 The learned magistrate dismissed the proceedings. He did so on the basis that the plaintiff had not satisfied him that the existing dividing fence was an insufficient dividing fence. 6 On 8 June 2004, the plaintiff filed a summons in this court. The purport of the summons is to challenge the decision of the learned magistrate by way of appeal. 7 An appeal is only available in this court where it can be demonstrated that there has been error in point of law. The plaintiff bears the onus of satisfying the court that there has been such error and that it justifies the disturbing of the decision of the Local Court. 8 The appeal was heard on 15 October 2004. The plaintiff was represented by counsel. The defendants appeared in person (Mr Watts was the advocate for both of them). 9 The purpose of the Act is expressed to be to provide for the apportionment of the cost of a dividing fence between adjoining lands. I shall briefly refer to the structure of the legislation. Section 6 purports to enunciate a general principle (which is that an adjoining owner is liable to contribute to the carrying out of fencing work where there is no sufficient dividing fence). Section 4 sets out the matters to be considered when determining the standard for a sufficient dividing fence. Section 14 sets out the orders as to fencing work that may be made by the court. 10 The content of the Act demonstrates that jurisdiction to make orders is dependent upon a finding that there is an insufficient dividing fence between the adjoining lands. Unless that finding is made, no orders can be made. Such a finding gives rise to the liability referred to in s6 and enables the making of orders pursuant to s14. 11 The learned magistrate considered the evidence and the submissions. He was not satisfied that the existing arrangements could be regarded as an insufficient dividing fence. This was a finding that was supported by the evidence that had been placed before him. Indeed, not only was it reasonably open, it seemed to me to be the inevitable result. In my view, it cannot be disturbed in this court. There is no error in point of law that attracts its jurisdiction. 12 The learned magistrate was presented with a challenging task. He was left to resolve the dispute in circumstances where all parties were unrepresented. He was not invited to have a view. He received documentary evidence and photographs that were placed before him. Largely, the hearing seems to have proceeded by way of discussion between the parties and the bench. 13 There was no issue as to the structural soundness of the existing arrangements. Such soundness was manifestly obvious from the photographs. The principal, if not the only, purpose of the application was an increase of privacy. What seems to have been sought is what might be regarded as total privacy. 14 I now turn to particular arguments that were advanced on behalf of the plaintiff in this appeal. I shall assume, for the purposes of this exercise, that what was said gave rise to error in point of law. 15 On 22 June 2004, the plaintiff had filed a statement of grounds. The oral submissions were directed to an amplification of these matters. Although the document contains nine grounds, what was in fact argued can be briefly dealt with by way of general reference to the several matters thereby raised. 16 It was argued that the learned magistrate failed to address the question of the sufficiency of that part of the existing dividing fence forward of the garage alignment. In my view, this contention was untenable. 17 The judgment appears to commence on page 10 of the transcript and continue over to and conclude on page 11 thereof. On page 11, there is express reference to the boundary fence forward of the garage alignment (he had earlier referred to the replacement of the retaining wall). In my view, what was said by the learned magistrate in the reasons was general in nature and intended to have application to both aspects of the changes. 18 It was also argued that the learned magistrate failed to take into account a relevant factor (namely, the privacy of the plaintiff and his wife). I am not satisfied that this was the case. 19 The question of privacy was raised by the plaintiff shortly prior to the commencement of the delivery of the judgment. The learned magistrate then asked Mr Watts to comment on it. Thereafter, when he was shortly into his judgment, a further reference was made to this contention ("he says the fence is of insufficient height to guarantee he and his families (sic) privacy"). The plaintiff then interjected to add "And security". The judgment then proceeded with a reference to matters which would seem to be relevant to a consideration of privacy issues. It seems to me that the matter of privacy was taken into account in the reaching of his decision. 20 It was also argued that the learned magistrate erroneously took into account a matter which was not part of the evidence (namely, a development approval in respect to the property of the plaintiff). I do not accept that argument. 21 It appears that the matter of the proposed development application was raised in the course of the discussions had during the hearing. In the expression of his reasoning process, the learned magistrate observed that Mr Alwiah proposed to construct a patio at the rear of his premises and that a copy of the development application had been served on Mr and Mrs Watts. 22 It seems to me likely that this matter may have been merely referred to for completeness and was not a matter that led him to the finding that the existing arrangements were not sufficient. Of course, any such matter could be expected to have relevance inter alia on questions of the defendants' privacy. 23 The grounds throw up the suggestion that the learned magistrate may have misdirected himself as to the nature of the proposed changes. In my view, there is no substance in any argument that may have been advanced to that effect. 24 Finally, there is what might be described as a denial of procedural fairness allegation. It is said that the learned magistrate unduly interfered with the conduct of the hearing and that he did not afford the plaintiff an opportunity to put his case. In my view, a reading of the transcript fails to substantiate that allegation. 25 It seems to me the plaintiff was given a reasonable opportunity to present his case. Further, I do not accept that there was any undue interference. It seems to me that the learned magistrate did the best that could be done in difficult circumstances. 26 In support of this allegation, reference was made to a few passages in the transcript. Largely, what was referred to related to interruptions from the plaintiff whilst the learned magistrate was in the process of delivering his judgment. In my view, he was entitled to expect that he would be allowed to deliver his judgment free from interjection. 27 Before concluding this judgment, it may be helpful to make some further general observations concerning dividing fence disputes. 28 The Act confers jurisdiction on both a Local Court or local land board. The latter seems to be the forum usually chosen by applicants for relief under the Act. It has the experience and more informal processes for dealing with such applications. As I understand the position, it is common for the board to have a view. 29 Leaving these matters aside, dividing fence disputes are usually better accommodated by pursuit of processes such as mediation or arbitration. A court is usually not an appropriate forum to determine them. Generally speaking, such disputes can be expected to give rise to practical problems involving detailed considerations of fact. 30 There is nothing that this court can do to assist the parties in this case. The appeal is misconceived and doomed to failure. 31 The summons is dismissed. The plaintiff is to pay the costs of the summons. ********** Last Modified: 10/25/2004 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. 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