Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Auchettl v Kirk [2015] NSWCATAP 6 Hearing dates: Not Applicable. Appeal determined on the papers Date of orders: 10 February 2015 Decision date: 10 February 2015 Jurisdiction: Appeal Panel Before: N Hennessy LCM, Deputy President R Titterton, Principal Member Decision: Application for leave to appeal dismissed Appeal dismissed Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL (NSW) – appeal for leave to appeal – principles applicable Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh Makita (Australia) Pty Ltd v Sprowles Texts Cited: Not applicable Category: Principal judgment Parties: Janet Auchettl (Appellant) Valerie Kirk (Respondent) Representation: Counsel: Not applicable Solicitors: Not applicable File Number(s): AP 14/48130 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 29 August 2014 Before: K Holwell File Number(s): COM 14/33547 reasons for decision Introduction 1. In this matter the appellant seeks to appeal from a decision of the Consumer and Commercial Division of the NSW Civil and Administrative Tribunal (the Tribunal) of 29 August 2014. 2. The parties are neighbours. The sole issue in dispute is whether the height of part of a dividing fence between their properties is to be 1800mm, as ordered by the Tribunal, or 1500mm, as sought by the appellant. 3. This is a matter where, save for one matter discussed below, the appellant requires the leave of the Appeal Panel for the appeal to proceed. For the reasons below, we consider that leave to appear, where required, should be refused, and the appeal otherwise dismissed. Notice of Appeal 1. The appellant states her grounds of appeal as follows: 1. Health grounds – 1800mm high fence will have significant negative impacts on air circulation [and] light to my property. 2. Member was not able to locate and therefore did not rely on any materials I submitted. 3. Respondent's only impact re privacy that she claims is a bedroom that is occasionally occupied. 4. The height of the fence impacts on my lounge, living, dining and kitchen and therefore my quality of life. 5. Medical certificates were not available at time of hearing (specialist appointment was after hearing). 6. Natural ground level – ambiguous as two properties are on sloping ground and some 200+mm different in height. 1. The appellant says that the decision of the Tribunal was not fair and equitable for the following reasons: The height of the fence is the issue in dispute. The member applied to maximum height permitted under council regulations (without DA) and did not consider the lesser height as requested in my papers. The member said he did not have a copy of my submissions and refused to take a copy I provided. The current fence that has been at the boundary for over 30 years is a maximum of 90mm [sic - cm] and has sufficed for all these years. Natural ground levels differs between the properties by at least 200mm. 1. She asks the Appeal Panel to order that a colour bond fence be erected in a neutral cream colour to a maximum height of 1500mm. 2. In (undated and unsigned) written submissions the appellant submits that the Tribunal erred in not considering all matters as required by s4 of the Dividing Fences Act 1991. 3. The final paragraph of those submissions summarises the issue in dispute in the following terms: The only issue in dispute is that of the maximum height of the fence that is to be imposed on any party and the respondent would be provided with adequate privacy to her spare bedroom with a maximum height of 1500mm and this would give the appellant the additional light on the southern side of her property. Basis for appeal 1. The Civil and Administrative Tribunal Act 2013 (the Act) sets out the basis upon which appeals from decisions of the Consumer and Commercial Division of the Tribunal can be made. Under s80 of the Act an appeal may be made as of right on any question of law (s80(2)(b)) or with leave of the Appeal Panel on any other grounds (s80(2)(b)). 2. In the Notice of Appeal the appellant does not identify any of the grounds of appeal as constituting a question of law. But, given that she did not have legal representation, we accept that the second ground, that "the Member was not able to locate and therefore did not rely on any materials I submitted" does amount to a question of law. That question is whether the Tribunal has breached the rules of procedural fairness. We deal first with that issue. Ground of appeal on a question of law 1. The appellant submits that the Tribunal did not have the papers lodged by her and refused to take a copy offered at the hearing. The respondent notes that directions had been made for the filing and service of documents prior to the hearing, but that the only documents she received from the appellant were a letter from her solicitors, a quotation for a proposed fence, and two photographs. The Tribunal's reasons note that oral evidence was given by both parties, and that a considerable number of documents were tendered, and that the decision was reached after reviewing the submissions of the parties and the documents and photographs provided. 2. Procedural fairness requires, in part, that the Tribunal to 'take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings": s 38(5)(a). 3. The appellant has not identified the documents that she says she submitted and which were not taken into account by the Tribunal. Without knowing what those documents were, and how they may have affected the Tribunal's decision, we are not persuaded that the Tribunal failed to give the appellant a reasonable opportunity to be heard or otherwise have her submissions considered. Grounds of appeal requiring leave 1. Schedule 4, clause 12 of the Act provides that an Appeal Panel may grant leave only if satisfied the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal was not fair and equitable, or 2. the decision of the Tribunal 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. The expression "substantial miscarriage of justice" was considered by the Tribunal in Collins v Urban [2014] NSWCATAP 17. The Appeal Panel stated (at [71]) that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. 2. The Appeal Panel also stated (at [79]) that in order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result it would generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party failed to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred. 3. Where leave to appeal is required the general principles to be applied in determining whether or not leave to appeal should be granted were set out in Collins v Urban at [84] as follows: 1. (1) (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; 2. Ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. 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; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. 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. Consideration 1. Apart from ground 2, each ground of appeal requires leave. 2. Grounds 1 and 5 – "health grounds" – Medical evidence now available These two grounds can be considered together. The appellant submits, in essence, that an 1800mm fence will affect her health. She relies on a bundle of medical records which have been submitted on a confidential basis. On 27 November 2014 the Tribunal directed that those records not be disclosed other than to the Appeal Panel, with the proviso that if the Appeal Panel considered them to have relevance to the appeal then the respondent is to be provided with an opportunity to be heard on whether they should be disclosed to her. Save for one report, we do not consider that any of the records provided to the Appeal Panel have any relevance to these grounds of appeal. 3. The one exception is a medical certificate of the appellant's general practitioner Dr Trinidad dated 12 September 2014, and which does not appear to form part of the confidential bundle. The certificate states that the appellant, who has been a patient since 2003, has: frequent severe asthma with admissions to ICU in the past. She has been getting worsening chest pain being seen by a cardiologist due to anxiety regarding a fence that will keep her house in darkness. The panned 6 foot fence next to her house will exacerbate a mouldy environment that will exacerbate her asthma even more. A four foot fence will allow some light to enter her house as her house is already well shaded. 1. We propose to receive this certificate, on a limited basis, on the application for leave to appeal. We do so as the "health grounds" agitated by the appellant in her notice of appeal do not refer to any medical condition whatsoever. Accordingly they have no meaning without reference to some medical evidence. We note the respondent has been provided with this certificate, as she makes reference to it in her submissions. 2. We note however that this certificate postdates the hearing, and no explanation is given as to why it was not available at that time. The appellant refers to visiting a specialist after the hearing and that specialist raising concerns as to the appellant's health, but that does not explain why she did not have a medical certificate or report of her long-standing general practitioner available at the hearing. 3. As noted we propose to accept the medical certificate on a limited basis. Clearly the general practitioner can state that the appellant suffers from asthma. It is also within her expertise to state that the appellant has worsening chest pain. While the general practitioner can opine that the chest pain is due to anxiety, we doubt that it is within her field of expertise to state the anxiety relates to "a fence that will keep her house in darkness". Even if that statement is within her expertise, it is difficult to accept in the absence of that opinion being tested in cross-examination. 4. But the principal difficulty with the general practitioner's certificate is the statement that: The planned 6 foot fence next to her house will exacerbate a mouldy environment that will exacerbate her asthma even more. A four foot fence will allow some light to enter her house as her house is already well shaded". 1. In an oft-quoted passage, Heydon JA (as his Honour then was), in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, referred to the prime duty of experts in giving opinion evidence as furnishing the Court (or in this case a Tribunal) with criteria to enable the evaluation of the validity of the expert's conclusions. His Honour referred to the judgment of Lord President Cooper in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34 where the Lord President stated that the role of the expert was: to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury. In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert." 1. Quite apart from the medical report not being in the appropriate form required by the Tribunal (see NCAT Procedural Direction 3: Experts) we doubt that the doctor has the expertise to give opinion evidence about the appropriate height of the fence. But even if she did, we consider that that opinion has not been stated in any intelligible, convincing or testable way so as to guide the Tribunal. 2. In the circumstances, and given the failure of the appellant to explain why a certificate of the doctor was not available at the hearing, we do not propose to accept this medical report as evidence in the appeal, save for accepting the statement of the general practitioner that the appellant has frequent severe asthma, and that she has worsening chest pain due to anxiety. 3. The medical certificate, relating as it does to the appellant's asthma, provides a touchstone for determining whether the remaining medical records have any relevance. In our view they do not. The other records relate to a range of medical conditions affecting the appellant's health over the last 13 years. She has not suggested in her notice of appeal that any of those matters have any relevance in relation to the present appeal, save for a generalised assertion that the height of the fence ordered by the Tribunal will affect her health and lifestyle. 4. In the circumstances we are not persuaded that the matters raised in this ground of appeal favour a grant of leave to appeal. 5. Ground 3 – Respondent's privacy The appellant submits that the only impact on the respondent of a fence of a lower height would be on a seldom used spare bedroom. This amounts to a submission that the Tribunal erred in failing to give sufficient weight to this matter. As we have noted, the Tribunal's decision was reached after hearing the oral evidence of each party and reviewing all the evidence. Accordingly we do not consider that this ground of appeal favours a grant of leave. 6. Ground 4 – Height of fence will affect appellant's quality of life The appellant submits that the height of the fence as ordered by the Tribunal will impact on her lounge/living and dining rooms and kitchen, "and therefore [her] quality of life". This submission is no more than an assertion, it is not explained or referred to in the appellant's submissions and is otherwise unsupported by any evidence. In the circumstances, we do not consider that this ground of appeal favours a grant of leave. 7. Ground 6 – Natural ground level. The appellant submits that the reference in the Tribunal's order to the fence being "1.8m above natural ground level" is ambiguous as the two properties are on sloping ground and differ in height. We do not understand this submission. The orders of the Tribunal clearly define the boundary line on which the fencing work is to be carried out, direct the existing fence on that boundary line to be moved and order that that fence be replaced with a colour bond fence; the height of the fence is to be 1.2 metres above the natural ground level (in the 8.2 metre section from the street alignment) and 1.8 metres above the natural ground level for the remainder. Accordingly we do not see how the differing slopes of the property render those orders ambiguous when the fence is to run along the (defined) boundary line. In the circumstances, we do not consider that this ground of appeal favours a grant of leave. 8. There is one final matter. We noted above that the appellant submitted that the Tribunal erred in not considering all matters as required by s.4 of the Dividing Fences Act 1991. That section provides that the Tribunal is to consider "all the circumstances of the case" when determining the standard for a sufficient dividing fence, including the seven matters set out in paragraphs (a) to (g) of the section. While the Tribunal's written reasons for decision are short, given that the Tribunal made express reference to s.4 and to the statutory proscription of "all the circumstances of the case", we are not persuaded that the Tribunal erred as submitted by the appellant. Conclusion 1. We have considered the grounds of appeal advanced by the appellant together with her submissions both individually and cumulatively. We do not consider that appellant has raised an issue of principle, or a question of public importance or matters of administration or policy which might have general application. Nor do we consider that she has established an injustice which is reasonably clear, that the Tribunal made a factual error that was unreasonably arrived at or clearly mistaken, or that the Tribunal went about its 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. 2. In the circumstances the application for leave to appeal should be refused, and the appeal dismissed Orders The Appeal Panel makes the following orders: 1. The application for leave to appeal is dismissed. 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: 10 February 2015