New South Wales Supreme Court CITATION : Rahman v Antonio [2009] NSWSC 1346 HEARING DATE(S) : 30 November 2009 JUDGMENT DATE : 7 December 2009 JURISDICTION : Common Law JUDGMENT OF : Harrison AsJ (1) Leave to appeal a question of mixed fact and law is refused. DECISION : (2) The appeal is dismissed. (3) The amended summons filed 17 July 2009 is dismissed. (4) The plaintiff is to pay the defendants' costs as agreed or assessed. CATCHWORDS : APPEAL AND NEW TRIAL - appeal - general principles - interference with discretion of court below - appeal from Local Court Order pursuant to ss 6, 7 and 8 of the Dividing Fences Act1991 - ss 39, 40 and 41 Local Court Act 2007 - QUESTION OF LAW - question of procedural fairness - mixed question of law and fact - leave to appeal a question of mixed fact and law refused - no denial of procedural fairness - appeal dismissed LEGISLATION CITED : Dividing Fences Act 1991 Local Court Act 2007 CATEGORY : Principal judgment Allen v Kerr & Anor (1995) Aust Torts Reports 81-354 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Carr v Neill [1999] NSWSC 1263 Devries v Australian National Railways Commission (1993) 177 CLR 472 CASES CITED : Kojima Australia Pty Ltd v Australian Chinese Newspapers Pty Ltd [2000] NSWSC 1153 R L & D Investments Pty Ltd v Bibsy [2002] NSWSC 1082; (2002) 37 MVR 479 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588 Swain v Waverley Municipal Council [2005] 220 CLR 517 Wakim v Mathiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405 PARTIES : Fahmid Rahman (Plaintiff) Michael Antonio and Anna Antonio (Defendants) FILE NUMBER(S) : SC 11951/2009 SOLICITORS : R Christie (Plaintiff) Michael & Anna Antonio (Defendants in person) LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : 8002/09/46 LOWER COURT JUDICIAL OFFICER : Pierce LCM LOWER COURT DATE OF DECISION : 17 March 2009 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ASSOCIATE JUSTICE HARRISON MONDAY, 7 DECEMBER 2009 11951/2009 - FAHMID RAHMAN v MICHAEL ANTONIO & ANOR JUDGMENT (Appeal – Local Court – Dividing Fences Act 1991) 1 HER HONOUR: This appeal arises out of a dispute concerning a dividing fence between neighbouring properties. By amended summons filed 17 July 2009, the plaintiff seeks firstly, an order that the Local Court order made by his Honour Magistrate Pierce on 17 March 2009 pursuant to s 6 of the Dividing Fences Act 1991 be set aside; secondly, an order for costs for the erection of a fence to be awarded under s 7 and/or s 8 of the Dividing Fences Act 1991; thirdly that "reasonable application of the lands titles analysis of my [the plaintiff's] plight be considered"; fourthly, the normal process of divided payment occurs; and fifthly, "supervision of Council staff is provided". 2 The plaintiff is Fahmid Rahman ("Mr Rahman"). The defendants are Michael Antonio and Anna Antonio who are husband and wife ("Mr and Mrs Antonio"). Mr Rahman and Mr and Mrs Antonio were next door neighbours. Mr and Mrs Antonio sold their property about one month ago. At the hearing of this appeal, Mr Rahman was represented by a pro bono solicitor, Mr Christie. Mrs and Mrs Antonio appeared unrepresented. 3 Mr Rahman took an active role in the appeal despite being represented by a solicitor. He did not confine himself to the grounds raised in the amended summons. Additionally, he firstly complained that he was denied procedural fairness in that he was limited to 25 words to explain why he should have an order under the Dividing Fences Act; and secondly, that the fence was not damaged by him but by Mr and Mrs Antonio therefore he should not bear the whole of the cost for its erection. Mr and Mrs Antonio submitted that this matter had nothing to do with the Dividing Fences Act and that the former owner of Mr Rahman's property was obliged to build the fence at his cost. 4 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. The plaintiff commenced proceedings in the Supreme Court on 23 April 2009 before Registrar Bradford. The Registrar made a number of orders, which included a translation of the relevant Local Court judgment and order for the plaintiff to file and serve an amended summons setting out the grounds of appeal in accordance with rule 50.4 Uniform Civil Procedure Rules 2005 by 14 May 2009. 5 The plaintiff seeks relief under s 39 of the Local Court Act 2007 which provides that a party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law. 6 The onus lies on the plaintiff to demonstrate that there has been an error of law. What is a question of law (as opposed to a question of fact) was considered in Allen v Kerr & Anor (1995) Aust Torts Reports 81-354; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156; Carr v Neill [1999] NSWSC 1263 and R L & D Investments Pty Ltd v Bisby [2002] NSWSC 1082; (2002) 37 MVR 479. The judicial officer cannot act on evidence inconsistent with facts that are incontrovertibly established by the evidence - see Devries v Australian National Railways Commission (1993) 177 CLR 472 per Brennan, Gaudron and McHugh JJ at 479 and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588. 7 The plaintiff also sought leave pursuant s 40 of the Local Court Act. The onus lies with the plaintiff to demonstrate that there has been an error of law or that leave should be granted on a mixed question of law and fact. 8 Section 41 of the Local Court Act provides that the Court may determine an appeal either (a) by varying the terms of the judgment or order, or (b) by setting aside the judgment or order, or (c) by setting aside the judgment or order and remitting the matter to the Court for determination in accordance with the Supreme Court's directions, or (d) by dismissing the appeal. 9 In Swain v Waverley Municipal Council [2005] 220 CLR 517, Chief Justice Gleeson at [2] reiterated that in the common law system of civil justice, the issues between the parties are determined by the trial process. The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal. 10 The grounds of appeal that "reasonable application of the land titles analysis of the plaintiff's plight be considered" and "supervision of council staff be provided" do not raise an error on a point of law. Nor are they matters of mixed fact and law for which leave ought to be granted. The relevant legislation 11 Sections 6, 7 and 8 of the Dividing Fences Act reads: "6 General principle—liability for fencing work (1) 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 results or would result in the provision of a dividing fence of a standard not greater than the standard for a sufficient dividing fence. (2) This section applies whether or not a dividing fence already separates the adjoining lands. 7 Contribution as between adjoining owners—generally (1) 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. (2) An adjoining owner who desires to carry out fencing work involving a dividing fence of a standard greater than the standard for a sufficient dividing fence is liable for the fencing work to the extent to which it exceeds the standard for a sufficient dividing fence. (3) An adjoining owner who desires to carry out the trimming, lopping or removal of vegetation (as referred to in paragraph (b) of the definition of fencing work in section 3) for a purpose other than the provision of a sufficient dividing fence is liable for the expenses of carrying out the work to the extent to which those expenses are attributable to work done for that other purpose. 8 Contribution where negligent or deliberate act (1) Despite section 7, an adjoining owner is liable for up to the whole cost of the fencing work required to restore a dividing fence that has been damaged or destroyed by a negligent or deliberate act of the owner or of a person who has entered the land concerned with the express or implied consent of the owner. (2) Any such dividing fence is to be restored to a reasonable standard, having regard to its state before the damage or destruction. (3) In determining an adjoining owner's liability under this section, it does not matter if the negligent or deliberate act concerned took place before the commencement of this section." The Magistrate's reasons 12 On 4 December 2003, the Council wrote to Mr and Mrs Antonio and advised: "… As you are aware, the development application to erect the subject dwelling was approved on 26 March 2003 conditional upon the bay window to the rumpus room having fixed and frosted glass. On 14 August 2003, our City Development Committee considered an application to modify the consent and agreed to delete this requirement. In lieu of fixed and frosted glazing, the owner is required to provide a new 1.8 metre high paling fence on the common boundary. …" 13 This letter was in evidence before the Magistrate. It is common ground that the former owner did not build the fence. 14 In the Local Court, Mr and Mrs Antonio submitted before the Magistrate that the dividing fence was not damaged or destroyed by negligence or a deliberate act by them. They denied that the dividing fence was leant upon by metal gauze and they stated that the metal gauze was tied to a tree on their property so that it did not weigh on the dividing fence. They also denied Mr Rahman's submission that the lean apparent in the dividing fence was caused by the placement of a wheelbarrow and other items against it. 15 Mr and Mrs Antonio submitted that the dividing fence was falling over because the end post was removed during the construction of a colour bond fence (at a right angle to the dividing fence) and provided a copy of a photographs showing where the end post had been removed from the dividing fence (Annexure C). 16 In his extempore reasons dated 17 March 2009, his Honour Magistrate Pierce stated: "Section 6 of the Diving Fences Act is headed "general principle-liability for fencing work". Headings, not side notes but headings can be used to determine the meaning of the sections. So this is a general principle, right that's in the heading. Now that is a general principle, what it says is "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. Et cetera et cetera" it doesn't matter whether there's already a fence there they say. That does not identify the proportions right it just simply says he is liable to contribute, either one of you. Section 7 which is the only other section that seems to have any relevance at all, although I'll come to section 8 in a moment. Sections says "adjoining owners are liable to contribute in equal portions". With some other qualifications that don't matter but the heading to section 7 is "contribution as between adjoining owners-generally". So once again this is a general principle. In most cases it will be equal proportions. Section 8 does provide for liability for up to the whole cost of the fencing work, to restore a fence that is damaged or destroyed by a negligent or deliberate act of the owner or someone who has entered the land with his expressed or implied consent and that's a matter of restoration. Now one way of looking at sections 6 and 7 it might be thought that leaving aside deliberate damage or negligent damage, it might be thought that the only power is to require equal contribution and nothing else but I am inclined to think that's not the correct view because the headings have to be taken into account and each of the headings to sections 6 and 7 concern general principles. Section 6 identifies an obligation, section 7 puts a gloss on it. I think in the circumstances given the history of the requirement to replace the lost privacy, lost as a result of the lack of provision of frosted glass on the windows and the requirement at the time for a 1.8 metre fence and having in mind the fact that council declines jurisdiction itself, so that the only jurisdiction is to be what is under this Act that section 6 is worded sufficiently widely to permit me to make an order and I will make an order. As follows: ORDER PURSUANT TO SECTION 6 THAT FAHMID AND MITA RAHMAN CAUSE TO BE CONSTRUCTED AT THEIR OWN EXPENSE A DARK BROWN COLOUR BOND FENCE TO MATCH COLOUR AS CLOSELY AS POSSIBLE. THIRTY TWO METRES IN LENGTH APPROXIMATELY, TO REPLACE THE SECTION OF WOODEN FENCE BETWEEN XX AND XX XXXXX XXXXXX ROSLANDS 1.8 METRES IN HEIGHT, SUCH CONTRUCTION IS TO BE COMPLED BY 30 MAY 2009 THAT IS A BIT OVER TWO MONTHS. …" 17 In my view it was open to the Magistrate to decide under s 6 that Mr Rahman was obliged to contribute 100 per cent of costs of the dividing fence. There is no question of mixed fact and law for which leave ought to be granted. Procedural fairness 18 In Wakim v Mathiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405, O'Keefe J made the following observations regarding the now repealed Local Courts (Civil Claims) Act 1970 – the principles of which apply in this matter: "20 The requirements of natural justice (or procedural fairness as it is now commonly referred to) apply to the Small Claims Division of the Local Courts. This is clear from the nature of the function to be performed by that tribunal and the statutory recognition that is afforded to natural justice by s 69(2A) of the Act. 21 The content of the requirements of natural justice is not fixed. The content fluctuates. The overarching requirement is that of fairness ( National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR at 312 per Gibbs CJ with whom Brennan J agreed). For a court that normally involves a duty to: (i) act judicially; (ii) deal with the matter for decision without bias; (iii) give each party the opportunity of adequately presenting its case; (iv) observe the procedural and other rules provided for in the relevant statute; (v) come to its decision with that sense of responsibility that is the necessary accompaniment of the duty to do justice." 19 O'Keefe J made the same comments in Kojima Australia Pty Ltd v Australian Chinese Newspapers Pty Ltd [2000] NSWSC 1153 at [23]. 20 In the Local Court, at the outset (T 1.15-31) (Ex B) the following exchange took place between the Magistrate and Mr Rahman (the applicant): "HIS HONOUR: Who's applying for the dividing fence? You are? APPLICANT" Yes. HIS HONOUR: And tell me in twenty five words or less why you should have it, please. APPLICANT: As you know, my main problem with the fence .. (not transcribable).. -- HIS HONOUR: It's what, sorry? APPLICANT: Disobeying your order and ..(not transcribable).. she already arrest because she breached the AVO and she's under bail now. … APPLICANT: Yes, is all right. Now I apply for it, I send my neighbour notice to share the cost of dividing fence. My neighbour, he doesn't respond within one month and then I contacted the Department of Land and they are six months behind, then they advise me to contact the local court. I contacted to you and after 15 days I got response. I came here first time but they gave me hearing--" 21 Despite being requested by the Magistrate to confine himself to summarising his case into 25 words or less Mr Rahman did not do so. During the hearing of this appeal, Mr Rahman complained that the Magistrate refused to look at pictures of the fence that were on his laptop that was a matter for the Magistrate's discretion. The colour photographs should have been printed so that the Antonios and the Magistrate could properly view them. In any event, this ground was not raised in the notice of appeal and a fair reading of the 30 page transcript (Ex B) shows that Mr Rahman was given a more than reasonable opportunity to present his case. There was no denial of procedural fairness. 22 Leave to appeal a question of mixed fact and law is refused. The appeal is dismissed. The amended summons filed 17 July 2009 is dismissed. 23 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendants' costs as agreed or assessed. The Court orders: (1) Leave to appeal a question of mixed fact and law is refused. (2) The appeal is dismissed. (3) The amended summons filed 17 July 2009 is dismissed. (4) The plaintiff is to pay the defendants' costs as agreed or assessed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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