Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Shirley Therese Berriman v Wayne Gaynes Pty Ltd [2015] NSWCATAP 29 Hearing dates: 13 February 2015 Date of orders: 03 March 2015 Decision date: 03 March 2015 Jurisdiction: Appeal Panel Before: The Hon DA Cowdroy OAM QC, Principal Member Ms K Rosser, Senior Member Decision: The application for an extension of time in which to appeal is refused. The appeal is dismissed. Catchwords: Civil and Administrative Tribunal (NSW) - Appeal filed out of time; Principles to consider on extension of time; no reasonable prospect of success Legislation Cited: Civil and Administrative Tribunal Act 2013 Dividing Fences Act 1991 Environmental Planning and Assessment Act 1981 (NSW) Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Texts Cited: None Category: Principal judgment Parties: Shirley Therese Berriman (Appellant) Wayne Gaynes Pty Ltd (Respondent) Representation: Mr Dennis Berriman for the Appellant Mr Wayne Gaynes for the Respondent File Number(s): AP1/60646 Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal (NSW) Jurisdiction: Consumer and Commercial Division; Dividing Fences Date of Decision: 10 October 2014 Before: D Charles, Member File Number(s): Com 14/29841Com 14/40137 REASONS FOR DECISION Introduction 1. By Notice of Appeal filed on 19 December 2014, Mrs Berriman seeks leave to appeal a decision of the Consumer Commercial Division of the Tribunal dated 10 October 2014 in proceedings COM 14/29841. The decision was received by the appellant on 15 October 2014. 2. The dispute between the parties to the appeal concerns the erection of a dividing fence. The dispute is more fully described below. Another decision involving the same parties and the same subject matter was made by the Tribunal on 10 October 2014. That decision was in proceedings Com 14/40137. 3. Mr Dennis Berriman completed the Notice of Appeal on behalf of his mother, Mrs Berriman. He appeared for her both before the Tribunal and before the Appeal Panel. It is clear from the Notice of Appeal that Mrs Berriman challenges both decisions of the Tribunal, but more particularly the decision in Com 14/40137. This appeal will be treated as an appeal in respect of each of the decisions delivered on 10 October 2014. The respondent [Gaynes] consented to this course in the Reply to Appeal. 4. For the reasons set out below, the Appeal Panel has decided not to extend time in which to appeal and has accordingly dismissed the appeal. Background 1. Gaynes is the registered proprietor of a lot in Elermore Vale. Mrs Berriman is the owner of the adjoining lot. 2. By Development Application 2012/1174, Gaynes applied to the City of Newcastle for approval to demolish an existing dwelling and outbuilding on its land; for the erection of five two-storey attached dwellings and associated retaining walls; and to erect a new dividing fence between land owned by Gaynes and land owned by Mrs Berriman. 3. Approval for the development was granted pursuant to s 81 of the Environmental Planning and Assessment Act 1981 (NSW) on 16 May 2013. 4. An existing fence divides Mrs Berriman's and Gaynes' land. The photographs tendered before the Tribunal showed that the fence is made of a mixture of materials. The fence is partly constructed from metal and corrugated iron and partly from wood. 5. Gaynes made known to Mrs Berriman that it wished to construct the new fence approved by Council. A notice to carry out fencing work dated 30 May 2014, issued under s 11 of the Dividing Fences Act 1991, was served on Mrs Berriman. In response to this notice, Mrs Berriman's son, Mr Dennis Berriman, commenced proceedings COM 14/29841 on 6 June 2014, seeking an order that a new dividing fence was not required. 6. Gaynes served on Mrs Berriman a further notice to carry out fencing work dated 2 July 2014. On 11 August 2014, Gaynes commenced proceedings COM 14/40137, seeking orders for the replacement of the fence. The central issue in the two applications were the same; that is, whether the dividing fence between the parties' properties should be replaced. Proceedings in the Tribunal 1. Mrs Berriman's application first came before the Tribunal on 15 July 2014. Directions were made on that day for the filing and serving of evidence. Mr Berriman appeared for his mother at the hearing. Mr Berriman had originally been recorded as an applicant in the proceedings, but he was removed as a party at the 15 July 2014 hearing as he is not a registered proprietor of his mother's property. 2. Mrs Berriman was directed to file and serve all documents on which she intended to rely at the hearing by 29 July 2014. Time to do so was extended, at Mr Berriman's request, on 21 August 2014. 3. Mrs Berriman's application was originally listed for formal hearing on 17 October 2014. However, at Gaynes' request, that hearing was adjourned and the hearing was re-scheduled on 10 October 2014. Gaynes' application, which as noted above was filed on 11 August 2014, was listed for hearing on the same day. Mrs Berriman did not comply with the Tribunal's directions to file and serve documents and neither she nor Mr Berriman appeared at the hearing. The Tribunal found that Mrs Berriman had been notified of the hearing and heard and determined both applications in her absence. 4. The Tribunal made the following orders in relation to Mrs Berriman's application COM 14/29841: 1. The application is dismissed because: 1. There is no appearance of applicant by 10.45 am. No satisfactory explanation for non-attendance has been given to the Tribunal. 2. The Tribunal has no jurisdiction to determine the application as the applicant has brought this application in breach of section 12(2) of the Dividing Fences Act 1991 in that she has brought the application less than one month after service of a notice under section 11 of the Act. 3. For the reasons set out with the orders made in favour of the respondent in File No 14/40137 1. With respect to Gaynes' application, Com 14/40137 the Tribunal made the following orders: 1. An order that the existing dividing fence be replaced with a new Colourbond fence 1800mm high from existing ground level, on the full length of the common boundary line between 150 and 152 Croudace Road Elermore Vale NSW as set out in red on the sketch plan prepared by Land Development Solutions Pty Ltd dated 28 July 2014 reference 4556. 2. The fencing work on Order 1 is to be carried out wholly at the applicant's cost. 3. The fencing work in Order 1 is to be carried out by the applicant commensurate with its development of its property and not later than 2 years from the date of this order. Notice of Appeal 1. The Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) sets out the basis upon which appeals from decisions of the Tribunal may arise. This is an internal appeal under s 80(2)(b) of the Act. Such an appeal may be made as of right on any question of law, or with leave of the Appeal Panel on any other grounds. 2. Appeals on any other grounds from decisions made in the Consumer and Commercial Division are governed by Schedule 4, clause 12 of the NCAT Act. This clause provides that an Appeal Panel may grant leave to appeal if satisfied the appellant may have suffered a substantial miscarriage of justice because the decision of the Tribunal under appeal was not fair and equitable, that it was against the weight of the evidence, or that evidence is now available that was not reasonably available at the time of the hearing. 3. Mrs Berriman's grounds of appeal are set out in the Notice of Appeal. No errors of law are identified in the Notice of Appeal. In completing the Notice of Appeal, Mr Berriman sought leave to appeal on all three grounds set out in clause 12. 4. However, the essential basis for the appeal is that the decision was not fair and equitable because Mr Berriman was not present at the hearing and did not have an opportunity to present evidence in support of his mother's case. That case is that the fence currently in place is in good condition and does not need replacing. Mr Berriman states that he was not present at the hearing because he understood that the hearing was on 17 October 2014 and not on 10 October 2014. 5. If Mrs Berriman was deprived of the opportunity to have her case put to the Tribunal by the hearing being held on a date other than the date notified, that may constitute a denial of procedural fairness, which would be an error of law in relation to which leave to appeal is not required. Whether this is what occurred is considered below, under the heading "Reasons for the Delay". Evidence and submissions 1. In determining the appeal, we have considered the following documents: 1. The Notice of Appeal and attached documents filed and served by Mr Berriman on behalf of Mrs Berriman; 2. The Reply to Appeal and attached documents filed by Gaynes; 3. The Tribunal's reasons for decision in Com 14/29841 and Com 14/40137; 4. Directions by the Tribunal made in Com 14/29841 on 15 July 2014. 5. Mr Berriman's written application for an extension of time to comply with directions dated 12 August 2014; 6. The extension of time to comply with directions dated 21 August 2014; 7. A notice dated 12 August 2014 adjourning the hearing in Com 14/29841 which had been listed on 17 October 2014 and 8. Notices of hearing dated 12 August 2014 in respect of hearings in both applications on 10 October 2014. Extension of time 1. Mrs Berriman seeks an extension of time in which to file the appeal. 2. Pursuant to regulation 25(4)(c) of the Civil and Administrative Tribunal Rules 2014, unless the Tribunal grants an extension under s 41 of the NCAT Act, an appeal must be lodged within 28 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later). 3. At the hearing, Mr Berriman stated that the Tribunal decisions were received on 15 October 2014. As the appeal was filed on 19 December 2014, it was filed more than five weeks out of time. 4. The Appeal Panel considered the principles which govern the granting of an extension of time in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 the Appeal Panel stated at [22]: The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision -Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]. 1. The Appeal Panel has considered the application of these principles to this appeal as follows. Length of the delay 1. As noted above, the length of the delay is this case is more than five weeks. Given that 28 days is allowed in which to file an internal appeal, the Appeal Panel considers that a delay of more than five weeks weighs slightly towards an extension of time not being granted. Reasons for the delay 1. When asked why there had been a delay in filing the appeal, Mr Berriman stated that he had a notice stating that the hearing before the Tribunal would be on 17 October 2014. However, when the decision was received, it showed that the hearing was on 10 October 2014. Mr Berriman stated that he filed the appeal after he located the Notice of Hearing for 17 October 2014. 2. The Appeal Panel put to Mr Berriman that the Tribunal file indicates that the hearing was originally listed on 17 October. However, that hearing was adjourned. An adjournment notice was sent to his mother, care of him at the correct address, on 12 August 2014. Notices of hearing in both matters for 10 October 2014 were also sent to his mother at the correct address. Mr Berriman responded that his mother must not have given him these documents. He did not assert that the notices had not been received. 3. The Appeal Panel is satisfied that Mrs Berriman was notified of the adjournment of the hearing on 17 October 2014 and of the re-scheduled hearing on 10 October 2014. In these circumstances, the Appeal Panel finds that the only reason for the delay advanced by Mr Berriman is unsatisfactory and weighs against an extension of time being granted. 4. The Appeal Panel finds that Mrs Berriman was not deprived of the opportunity of having her case put to the Tribunal because the hearing was not held on a date of which she had been notified. The Appeal Panel finds that Mrs Berriman's case was not put to the Tribunal because she did not advise Mr Berriman that the date of the hearing had been changed. The Appeal Panel does not consider that there was any lack of procedural fairness in the Tribunal hearing and determining the applications in Mr Berriman's absence. Prospects of success 1. As noted above, Mrs Berriman's application first came before the Tribunal on 15 July 2014. Directions were made on that date for the filing and serving of evidence. Mrs Berriman did not file any evidence even though an extension of time to do so was granted, When the Appeal Panel asked Mr Berriman why no evidence had been filed in accordance with Tribunal's directions, he responded that he has memory problems. He advanced no other explanation. 2. On the basis of a medical certificate annexed to the Notice of Appeal the Appeal Panel accepts that Mr Berriman suffers from certain disabilities which affect, to a degree, his mental reasoning. However, the matters before the Tribunal were applications in which Mrs Berriman was a party and she could have arranged to be represented by a person who did not suffer from memory problems, even if that meant looking outside the family for such representation. 3. As to the merits of Mrs Berriman's case that the fence does not need to be replaced, Mr Berriman has attached to the Notice of Appeal material which he claims demonstrates that the existing fence is adequate, that there is no need to replace it and that, contrary to the evidence of the structural engineer retained by Mr Gaynes on behalf of the respondent (which evidence was filed and served in accordance with the directions made by the Tribunal) the fence is not leaning. 4. Further, Mr Berriman told the Appeal Panel that, insofar as the fence was not located on the correct surveyed boundary, shortly before Christmas 2014 he had altered the position of the existing fence so that it complied with a survey and accordingly the fence is now in its correct position. 5. We make the following observations in relation to the material filed by both parties in relation to the appeal and the submissions made during the hearing: 1. The development proposed on the site was notified to Mrs Berriman by Newcastle City Council. That development application clearly shows the erection of a fence. No formal objection was made by Mrs Berriman to the development proposal; 2. If Mr Berriman altered the position of the fence shortly before Christmas, the evidence establishes that it is still located in the wrong position. The survey dated January 2015, which is annexed to the Reply to Appeal, demonstrates that the fence is not on the surveyed boundary; 3. The photographs, including those tendered by Mr Berriman, clearly show that the fence is constructed of a mismatch of materials. The Tribunal member found that a new fence was required, due to degradation of the existing fences. Such a finding is supported by the weight of the evidence. 4. The photographs tendered also show that the existing fence, in certain places, is supported by chains and in other places by timber. The Tribunal found that the existing fence was not structurally sound, and was not in keeping with the proposed development. These conclusions led to the finding that there was "no sufficient dividing fence", as referred to in s 4 of the Dividing Fences Act. This finding is also supported by the weight of the evidence. 5. The Tribunal held that a fence height of 1.8 metres was appropriate, and that the material known as "Colourbond" was also appropriate. Once again, the Tribunal's findings are supported by the weight of the evidence. 6. We note that at the hearing of this appeal, Mr Berriman expressed his principal concern that Gaynes' workers would enter upon his mother's property. We note that there is now no need for any workers to enter upon Mrs Berriman's premises, due to Gaynes seeking and obtaining permission for the provision of an alternative sewer proposal. 7. We also note that Mr Berriman complained that the fence may be of a different height, resulting from differing ground levels on either side of the common boundary. The height of 1.8 metres has been proposed and has been considered by the Tribunal Member to be appropriate. This was the fence height proposed in the development application. Such a finding is supported by the weight of the evidence. 8. We note that several attempts have been made to resolve the issue of the replacement fence, but those attempts have not been successful. We make no comment upon those attempts in view of the competing and conflicting statements by the parties. 9. Gaynes has, by virtue of its development approval, a legal right to construct the proposed fence. Further, the provision of such a fence is a legal requirement for the development. 10. The Tribunal Member had before him evidence that the existing fence was unsightly; that as part of the redevelopment of Lot 23, retaining walls were to be constructed. Such walls could not be erected without affecting the existing fencing; that the existing fencing, in part, was not on the common boundary, and that the fence was leaning in certain places. For these reasons the Tribunal Member found that it was desirable that the new fence should be installed. There was no issue that Gaynes would bear the cost of the installation. All of these findings were available to the Tribunal Member on the evidence before him. 11. Mr Berriman seeks to rely upon material which is not "new" in the sense that it could not have been brought before the original Tribunal hearing. Rather, the material is material that was "reasonably available" at the time of the Tribunal hearing, had Mr Berriman complied with the Tribunal's directions. 12. All of the material on which Mr Berriman seeks to rely should have been provided to the Tribunal in accordance with directions. Indeed, in the Notice of Appeal Mr Berriman states that he had this material "all the time". There is no satisfactory reason for that material not having been filed in accordance with Tribunal directions. 13. Further, the material Mr Berriman has put before the Appeal Panel clearly demonstrates that Mr Berriman seeks to challenge the factual findings of the Tribunal member. There is no question of law involved in this appeal. Further, we are not satisfied that the material tendered by Mr Berriman on the appeal would have resulted in findings being made in Mrs Berriman's favour, even if it had been filed in accordance with the Tribunal's directions and had been before the Tribunal on the date of the hearing. 1. In substance, the Tribunal's decision is one which Mrs Berriman finds to be not to her liking, but no substantive reason is advanced why the decision appealed from is in error or why she has suffered a substantial miscarriage of justice. The Appeal Panel is satisfied that the weight of the evidence supports the findings made by the Tribunal. The Appeal Panel concludes that the result would have been the same even if the material tendered by Mrs Berriman on appeal had been before the Tribunal. 2. We note that the Tribunal member found that the Tribunal had no jurisdiction to deal with Mrs Berriman's application. This finding was based on the Tribunal member's interpretation of s 12(2) of the Dividing Fences Act. We do not support this finding. However, since it was not challenged, nor were submissions made in relation to it, we make no further observation. In any event, that finding does not affect the outcome of this appeal. 3. Overall, we are not satisfied that Mrs Berriman's appeal has any prospect of success. The lack of merit of her case weighs very strongly against extending time. Prejudice to the respondent 1. The Appeal Panel finds that Gaynes is being denied the fruits of the decision of the Tribunal handed down on 10 October 2014. Gaynes has had approval for its development, including the replacement of the fence, for a significant period of time. We are satisfied that Gaynes would be prejudiced if an extension of time were granted. This factor also weighs against granting an extension of time. Conclusion 1. Taking into consideration the length of the delay in filing the appeal, the lack of satisfactory reason for the delay, the distinct lack of merit in Mrs Berriman's case and the prejudice to Gaynes, the Appeal Panel concludes that an extension of time should not be granted. Orders 1. The Appeal Panel therefore makes the following orders: 1. The application for an extension of time in which to appeal is refused. 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: 03 March 2015