Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Rowe v Russell [2014] NSWCATCD 171 Hearing dates: 20 August 2014 Decision date: 25 September 2014 Before: P Boyce, Senior Member Decision: 1The application is dismissed because the Tribunal lacks jurisdiction to hear and determine it. Catchwords: Issue Estoppel Legislation Cited: Civil and Administrative Tribunal Act 2013 Crown Lands Act 1989 Dividing Fences Act 1991 Category: Principal judgment Parties: Paul Joseph Rowe (applicant) Jason Russell (respondent) File Number(s): COM 14/20687 Publication restriction: None reasons for decision Application 1This is an application under the Dividing Fences Act 1991 by a land owner against an adjoining land owner filed with the Tribunal on 15 April 2014 for: (a)An order determining the manner in which contributions for the fence work are to be apportioned or re-apportioned between the parties or the amount that each adjoining owner is liable to pay for that work; and, (b)An order determining the time which the fencing work is to be carried out. 2In his application, the applicant describes the fencing work to be carried out as follows: "For details of the existing dividing fence, please refer to the Local Land Board (LLB) heading, 'Applicants Evidence' as well as photographs mentioned in Item 17 (enclosed). Fence work, see 'Application to LLB for an order for fencing work document, Items (a)-(c). Proposed fencing contractor, Ryan Brothers Fencing." Local Land Board Decision 3In the application, the applicant refers to the fencing work proposed as that work that he proposed in the application to the Local Land Board ("Board") in an application dated 21 March 2013. 4The application to the Board was heard, a view taken and determined by the Board constituted by J. Callaghan as Chairperson and D. Davidson as a Board Member on 15 July 2013. Both the applicant and the respondent appeared at the hearing and at the view. 5The Board made orders on 15 July 2013 in the following terms: (1)The adjoining owners are to lodge a development application with Council within 3 months. If the adjoining owners do not lodge a development application within 3 months, the applicant may lodge the development application on behalf of the adjoining owners and claim any council fees for the development application from the adjoining land owners. (2)The retaining wall, the subject of the development application, is to be constructed of treated timber and is to be built on the same line as the existing retaining wall. (3)The new retaining wall will run from the street to the front of both houses. The retaining wall will then recommence at the rear of the applicant's garage and run to the back of the properties. (4)The fence posts are to be attached to the retaining wall. (5)The dividing fence when erected will be a colorbond fence 1.8m high and run for 30.48m. The panel near the street will be raked down to 1.2m at the street. Both parties should obtain fresh quotes for the fence after Council have consented to the development application. (6)If the adjoining owner utilises the information contained in the retaining wall plans and specifications paid for by the applicant, the adjoining owners are to pay half the cost, being $550 to the applicant. (7)The fencing contractor to have the discretion as to the placement of the fence posts when attaching them to the retaining wall. (8)Both parties are to pay half the cost of the retaining wall and new fence. (9)The colorbond fence will have primrose surrounds and leaf green inserts. (10)There is no order as to costs. General Orders (11)If both parties obtain a quote within the time allowed under these Orders and there is absence of agreement between the parties as to which quote is to be accepted, the quote or quotes are to be referred to the Chairperson for decision as to which quote will be selected. In making the decision, the Chairperson: (i)Will not consider any submissions made by either party in respect of the acceptability or otherwise of the quotes submitted; (ii)Is not bound to select the lowest quote submitted by the parties; (iii)Is not bound to be satisfied as to the bona fides or status of the proposed contractor; (iv)Will not provide reasons for the decision made; and, (v)The decision will be final and at the Chairpersons absolute discretion. (12)If only one party has obtained a quote by the end of 2 months period, that quote is to be forwarded to the Registrar at Parramatta to determine if the quote complies with the decision of the Board. Jurisdiction 6Local Land Boards were abolished by s3 of the Civil and Administrative Tribunal Act 2013 and consequential amendments to the Crown Lands Act 1989 on 31 December 2013. 7The New South Wales Civil and Administrative Tribunal (the "Tribunal") commenced on 1 January 2014. 8The jurisdiction to hear and determine applications under the Dividing Fences Act 1990 was granted to NCAT by amendments to that Act commencing 1 January 2014. 9Sch 1 of the Civil and Administrative Tribunal Act 2013 contains savings and transitional provisions for applications for proceedings concerning abolished existing tribunals. 10S6 of sch 1 provides definitions for "part heard proceedings", "pending proceedings", "unexercised right" and unheard proceedings". 11The Local Land Board made its final decision in relation to the proceedings brought by the applicant on 15 July 2013. 12The nature of the applicant's application to NCAT is to seek a review of the decision of the Local Land Board. In his submission to the Tribunal he repeatedly refers to an alleged error made by the Local Land Board in making its determination about the location of a retaining wall. 13At the time of hearing and determining the application by the Local Land Board s19 of the Dividing Fences Act 1991 provided that the order of a local land board was final. However, s19 (2) permitted an appeal to the Supreme Court on an error in law. 14That is, the Local Land Board had made a final determination in respect of the application before it. 15The proceedings before the Local Land Board were not part heard, pending or unheard. 16As to them being "unexercised right", s 9(1) of Sch 1of Civil and Administrative Tribunal Act provides that certain unexercised rights to make application or appeals to existing tribunals may continue to be exercised by NCAT for the following unexercised rights: (1) to make a decision at first instance; (2) to apply for a review of the a decision another body (local land board); or (3) an appeal to an existing tribunal. 17S9(2) provides: A person who has an existing unexercised application or appeal right may apply or appeal to NCAT for the exercise of the same functions that could have been exercised by the existing tribunal to which the right relates had the existing tribunal not been abolished. 18The Local Land Board had made its decision in first instance on the applicants same application as he now brings to the Tribunal. There was no entitlement under the Dividing Fences Act at the time of determination by the Local Land Board for the decision to be reviewed or appealed to other than the Supreme Court and then only on a question of law. 19This Tribunal finds that it has no jurisdiction to hear and determine the application for the reasons set out in these reason for decision. Further the rehearing of the applicant's application is precluded by the doctrine of issue estoppels. That is the application now before the Tribunal involves the same parties and issues as has already been determined by another tribunal. 20The application is dismissed because the Tribunal lacks jurisdiction to hear and determine it. P L Boyce Senior Member Civil and Administrative Tribunal of New South Wales 25 September 2014 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: 07 November 2014