Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Nancarrow v Donvito [2017] NSWCATAP 97 Hearing dates: 10 March 2017 Date of orders: 03 May 2017 Decision date: 03 May 2017 Before: Hon F Marks, Principal Member T Simon, Senior Member Decision: (1) The appeal is allowed (2) The order made by the Member in COM 16/20259 is quashed (3) The matter is referred to the Consumer and Commercial Division to be determined by a different Member Catchwords: Appeal-failure to give reasons-appeal as of right-further disposition of proceedings - Dividing Fences Act application-held existing fence sufficient dividing fence- Application remitted for further hearing Legislation Cited: Dividing Fences Act Civil and Administrative Tribunal Act Cases Cited: Larney v Johannson [2013] NSWCA 409 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Collins v Urban [2014] NSWCATAP17 Lindsay v Johnston [2014] NSWCATCD 45 Category: Principal judgment Parties: Jason Nancarrow and Michelle Black (appellants) John Donvito and Dianne Wilder (respondents) Representation: Appellant in person Respondent in person File Number(s): AP 16/55084 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 8 December 2016 Before: K Holwell General Member File Number(s): COM 16/20259 reasons for decision Introduction 1. The appellants Jason Nancarrow and Michelle Black own 2.39 HA of rural land which faces a country road. Otherwise, the land is surrounded by and shares a boundary with approximately 160 HA of land owned by the respondents, John Donvito and Dianne Wilder. The boundary follows the path of a creek, and is about 300m long. The property owned by the respondents shares boundaries on either side and at the rear with other property owners. 2. The respondents conduct a cattle farming business on their property. The value of their herd was said to be of the order of $250,000. The appellants have 4 horses on their property. They operate a counselling and developmental service for "equine assistance psychotherapy and personal development" of persons for the purpose of "developing social and emotional skills to improve well-being and alleviate experiences of anxiety, depression, secondary dramatic stress and burnout." As we understand the nature of the business, it involves interaction between clients and the horses owned by the appellants. 3. The local Shire Council served a notice on the respondents in October 2014 and again in January 2015 in response to complaints received about livestock owned by them which were entering and roaming on private property and a public place, which we assume is a reference to the road. The respondents were required to take action to prevent the livestock from roaming from their property. It seems that these notices motivated the respondents to secure proper boundary fences with all of their neighbours and, presumably, to the road frontage to keep their cattle within their property. 4. On 10 March 2016 the respondents gave notice to the appellants under the Dividing Fences Act ("the Act") compelling the appellants to join in or contribute to the construction of a dividing fence along their boundary. The fence was proposed to be erected of wooden posts and 5 strands of barbed wire and asked that half the cost be borne by the appellants. Correspondence was conducted on behalf of the respondents by their solicitor. 5. The appellants replied in writing refusing to contribute to the cost of any barbed wire fencing. Firstly, they denied that the existing fencing required replacement, asserting that it had been properly maintained by them over the prior eight years. Secondly, they said that they used their property to raise and train horses for both "showing and competition purposes." They said that barbed wire would present "an unacceptable risk of both injury and property damage" referring to the horses themselves and to the gear which they wore. The existing fence consisted of either 2 strands or 3 strands of wire which was electrified and strung between metal star wire posts. 6. In an affidavit sworn in support of an application made to the Tribunal to resolve the disputation between the parties Mr Donvito said of the existing fencing that it was "not good enough to hold cattle back." A further affidavit was filed by him sworn 7 June 2016. In that affidavit he said that the existing fence was not "stock proof and prone to failure and is not an effective barrier to keep my cattle contained within my property boundary." He also said that an electric fence was not suitable "as it is prone to failure which is caused by branches falling on them which breaks the wire causing it to earth out and fail and be no longer stock-proof. An electric fence can also fail as a result of the wire coming into contact with long wet grass and also build-up of other vegetation coming into contact with wires. They also are ineffective when close to water courses and trees." There followed an assertion that electric fences were designed to be used for internal and temporary fences and were never designed as permanent boundary fences. They required almost daily inspection and maintenance which was almost impossible to achieve. Furthermore, steel star pickets were highly prone to fail as a result of cattle pushing against them "particularly in damp soils which are common on my property." He said that the current standard of fencing in the area was 5 strand barbed wire fencing with split wooden posts spaced at 3 meter intervals. 7. The respondents also filed an affidavit of Anthony Snellgove sworn on an unknown date in June 2016. Mr Snellgove conducts a cattle raising business on 400 acres with a herd of 120 beef cattle and has "done a large amount of fencing on my property." He said that he had inspected the existing boundary fence and that it was not sufficient. This was because cattle could easily push through in many places where there were gaps, a fallen branch might deactivate the electricity, and that electric fences should not be permanent fixtures between properties. He thought that it would not be able to retain cattle which may weigh up to 1 tonne or prevent other animals straying onto the property. He referred to electric fences as being prone to failure caused by the build-up of vegetation and contact with long wet grass in heavy rain. He preferred 5 strand barbed wire fence set on split wooden posts at three meter intervals. 8. The respondents also relied upon an affidavit of Harry Highfield sworn 7 June 2016. He was the former owner of the property now owned by the respondents and agreed with their assessment that a barbed wire fence set on timber posts was more appropriate than electrified wire fencing. 9. Evidence filed on behalf of the appellants indicates that they have owned their property since September 2007 and that the existing dividing fence has been erected since 2008. Since that time, they have kept the fence line clear of vegetation and maintained it, including regular spraying of vegetation underneath it. While there are generally 3 strands of wire, 2 strands are used where the fence crosses the creek to deal with problems when the creek floods. Mr Nancarrow said in an affidavit that he found a wire fence as opposed to a barbed wire fence easier to maintain and mend, and less likely to cause problems in times of flood if the fence was swept away. 10. Significantly, Mr Nancarrow said that during the period since 2008 not one of the respondents' cattle had strayed into the property of the appellants. Neither had there been any incident in which any of the cattle of the respondents had come into contact with the fence. No evidence to the contrary was led by the respondents. There is also evidence from Mr Nancarrow that other substantial rural properties in the area have electrified wire fencing, including some parts of the boundary fencing between the respondents and other neighbours. 11. Mr Nancarrow said that the wire on the fence is "deliberately not strained so as not to put undue pressure on the pickets. This method has proven successful …." 12. A statutory declaration sworn by Dr Shauna Lee Purser produced in favour of the appellants said that she had visited their property three times a week for approximately 18 months to undertake horse riding. She has never been aware of any cattle entering the property from neighbouring properties. A statutory declaration sworn by Dianne Baxter also produced on behalf of the appellants said that she was the owner and manager of an equestrian centre, gave horse riding lessons and organised riding clinics. She said that barbed wire fences "present a serious risk to horses. They can sustain serious, life-threatening injuries from barbed wire fences. Barbed wire fences can also lead to expensive damage to horse equipment like rugs and halters." Ms Baxter also deposed that in her opinion barbed wire fencing was prone to damage in flood situations because the barbed wire caught up flood debris and the trails of wire strands created a risk for animals and people. She herself used electrified wire fencing. 13. An extract from the website of the Tweed Shire Council was indicative that in a rural area a sufficient dividing fence consisted of a steel star post fence. The Decision under appeal 1. The application made by the respondents came on for hearing before the Tribunal on 8 August 2016. All of the evidentiary material which has been set out above was available to the Member. After referring briefly to the evidentiary material and the submissions of the parties the Member, in a decision published on 8 December 2016 said in part; 11 The existing fence is made of wire and is electrified. It has metal posts which may be star pickets. Having regard to the photographic evidence provided the Tribunal finds that the existing fence is of poor standard. The Tribunal finds that it is not a sufficient dividing fence and that it has to be replaced. The inadequacy of the reasons for decision 1. The determination of these proceedings involves, as a precondition, a consideration of whether or not there is a sufficient dividing fence between the properties of the respective parties. This is obvious from the provisions of section 6 of the Act which is in the following terms; Sec 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. (our emphasis added) 1. Some guidance as to whether there is in fact a sufficient dividing fence is found in the provisions of section 4 which is in the following terms; 4 Determination as to "sufficient dividing fence" In any proceedings under this Act, the Local Court or the Civil and Administrative Tribunal is to consider all the circumstances of the case when determining the standard for a sufficient dividing fence for the purposes of this Act, including the following: (a) the existing dividing fence (if any), (b) the purposes for which the adjoining lands are used or intended to be used, (c) the privacy or other concerns of the adjoining land owners, (d) the kind of dividing fence usual in the locality, (e) any policy or code relating to dividing fences adopted by the council of the local government area in which the adjoining lands are situated, (f) any relevant environmental planning instrument relating to the adjoining lands or to the locality in which they are situated, (g) in the case of a dividing fence affecting land the subject of a lease under the Western Lands Act 1901, any order in force under section 18A of that Act. 1. The application of these provisions was considered recently in the NSW Court of Appeal in Larney v Johannson [2013] NSWCA 409. In the course of his judgement Emmett JA said; It is clear from the long title of the Act, as well as the scheme of the Act generally, that the Act is concerned with providing for the apportionment of the cost of fencing work involved in the construction of a dividing fence. The liability to contribute to the cost of fencing work is imposed under Part 2. Part 3 then specifies procedures for resolving disputes as to boundary lines, the type of fencing work to be carried out and the cost of the fencing work. Specifically, s 11 provides for the giving of a notice by one adjoining owner to another. Section 12 then provides that if the adjoining owners do not agree as to the fencing work to be carried out, either adjoining owner may apply for an order determining the manner in which the fencing work, if any, is to be carried out. Clearly, the point of the qualification "if any" is to prevent the appearance of the Act begging the question that a dividing fence needs, in any given circumstance, to be constructed and contributed to by the other adjoining owner. It may be the case that there is already a sufficient dividing fence, whether natural or man-made, so that a new fence does not need to be constructed. It does not follow that, after a dividing fence has been constructed, an adjoining owner may apply under the Act to remove it and seek contribution for that removal. The Act is concerned only with contribution to the carrying out of fencing work. That term does not include the removal or demolition of an existing dividing fence, except to the extent that its removal may be involved in the replacement, repair or maintenance of an existing dividing fence. 1. (Our emphasis added) 2. Accordingly, the starting point for the Member when considering his decision should have been a determination of whether there was a sufficient dividing fence in existence by reference to the various provisions set out in section 4. 3. However, nowhere does the Member say what he saw in the photographs that led him to believe that the existing fence was of "poor standard", that it was not a sufficient dividing fence and that it required replacement, rather than repair. We have viewed the photographs which we understand to be those which were put before the Member. They do show in places that the wire is loose, but not to a large degree. This is consistent with the evidence of Mr Nancarrow that the wire was deliberately left loose in places so as not to put undue pressure on the metal posts. It was the fact of electrification that maintained the suitability of the fence to keep the respondents' cattle out of the property which he jointly owned. 4. In these circumstances, we conclude that the Member has failed to describe in his reasons for decision the basis for his assessment that the existing fence was of a "poor standard" and that it was not a sufficient fence and required replacement. 5. A failure to give proper reasons constitutes an error of law. So much is clear from the judgment of McColl JA (Ipp JA and Bryson AJA agreeing) in the NSW Court of Appeal in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110. In the context of an appeal from the District Court her Honour said; 56 The Court is conscious of not picking over an ex tempore judgment and, too, of giving due allowance for the pressures under which judges of the District Court are placed by the volume of cases coming before them (Maviglia v Maviglia [1999] NSWCA 188 (at [1]) per Mason P). However a trial judge's reasons must, "as a minimum...be adequate for the exercise of a facility of appeal": Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 (at 260) per Kirby P; (at 268 – 269) per Mahoney JA; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 (at 444) per Meagher JA. A superior court, "considering the decision of an inferior tribunal, should not be left to speculate from collateral observations as to the basis of a particular finding": Soulemezis (at 280) per McHugh JA applying Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 (at 701, 713). 57 The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes "a sense of grievance" and denies "both the fact and the appearance of justice having been done", thus working a miscarriage of justice: Mifsud v Campbell (1991) 21 NSWLR 725 (at 728); Beale (at 442) per Meagher JA. 58 The extent and content of reasons will depend upon the particular case under consideration and the matters in issue: Mifsud (at 728) per Samuels JA; Hull v Thompson [2001] NSWCA 359 (at [53]) per Rolfe AJA (Sheller JA and Davies AJA agreeing). While a judge is not obliged to spell out every detail of the process of reasoning to a finding (Yates Property Corporation Pty Limited (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 (at 171) per Mahoney JA, (at 182) per Handley JA), it is essential to expose the reasons for resolving a point critical to the contest between the parties: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 (at 442) per Kirby ACJ; Soulemezis (at 259) per Kirby P, (at 270) per Mahoney JA, (at 280) per McHugh JA; applied in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 (at [40]) per Gleeson CJ, Gummow and Heydon JJ. 59 The reasons must do justice to the issues posed by the parties' cases: see Moylan v Nutrasweet Co [2000] NSWCA 337 (at [61]) per Sheller JA (Beazley and Giles JJA agreeing). Discharge of this obligation is necessary to enable the parties to identify the basis of the judge's decision and the extent to which their arguments had been understood and accepted: Soulemezis (at 279) per McHugh JA. As Santow JA (with whom Meagher and Beazley JJA agreed) explained in Jones v Bradley [2003] NSWCA 81 (at [129]) it is necessary that the primary judge " 'enter into' the issues canvassed and explain why one case is preferred over another"; see also Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services [1999] EWCA Civ 811; [2000] 1 All ER 373 (at 377-378) per Henry, Laws LJJ and Hidden J. 1. (our emphasis) 2. …. 66 Because a primary judge is bound to state his or her reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried. This is because, so far as the reasons reveal, no examination was made of why the evidence which was accepted was to be preferred to that of other witnesses: Waterways Authority v Fitzgibbon; Mosman Municipal Council v Fitzgibbon; Middle Harbour Yacht Club v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 (at [130] – [131]) per Hayne J (with whom McHugh J (at [26]) and Gummow J (at [27]) agreed)); see also Najdovski v Crnojlovic [2008] NSWCA 175 (at [21]) per Basten JA (Allsop P and Windeyer J agreeing). 1. (our emphasis) 2. These principles have been adopted as applying to this Tribunal, as is made clear by the Appeal Panel in Collins v Urban [2014] NSWCATAP17 at para 56 and following. 3. We have previously set out the totality of the extract of the reasons for decision of the Member for his determination that the current fence is unsatisfactory for the purposes of the Act. Without unduly labouring the point, it is clear that "no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried. This is because, so far as the reasons reveal, no examination was made of why the evidence which was accepted was to be preferred to that of other witnesses". (per McColl JA in Pollard previously extracted). 4. Because the failure of the Member to set out adequate reasons for his decision, constitutes an error of law, it follows that this appeal is brought as of right. (see sec 80(2) of the Civil and Administrative Tribunal Act). The appeal must be allowed. The disposition of the proceedings 1. It is then necessary to determine what orders may appropriately be made in the circumstances of these proceedings. 2. Sec 81 of the Civil and Administrative Tribunal Act applies, and is in the following terms; 3. 81 Determination of internal appeals 4. (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: 5. (a) the appeal to be allowed or dismissed, 6. (b) the decision under appeal to be confirmed, affirmed or varied, 7. (c) the decision under appeal to be quashed or set aside, 8. (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, 9. (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. 10. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when varying, or making a decision in substitution for, the decision under appeal. 11. Some guidance to the appropriate approach is provided in the judgment of McColl JA in Pollard, previously referred to. Her Honour said; 67 Where an appellate court concludes that the primary judge has failed to give adequate reasons, it has a discretion as to whether a new trial should be ordered. If the only conclusion open on the evidence available at trial was the conclusion reached by the primary judge, then, notwithstanding an inadequate statement of reasons, the matter need not go to a new trial: Beale (at 444) per Meagher JA applying NSW Insurance Ministerial Corporation (formerly Government Insurance Office (NSW)) v Mesiti (Court of Appeal, 1 December 1994, unreported). In the latter case where the trial judge accepted the respondent's version of what occurred, Sheller JA (with whom Handley JA agreed) said, "[i]f there had been persuasive and critical contrary evidence the principles enunciated by Samuels JA in Mifsud v Campbell would suggest that a new trial must follow": Mesiti (BC9403342 at 9); see also Bourke v Beneficial Finance Corp Ltd (1993) 47 FCR 264 (at 284). In some cases of inadequate reasons, where there is no credit issue, the appeal court may be in as good a position to decide the matter as the trial judge: see Hunter v Transport Accident Commission (2005) 43 MVR 130; [2005] VSCA 1 (at [37]) per Nettle JA. 1. Although we are in possession of the evidentiary material which was before the Member, we cannot conclude that we are in a position to make a determination about the existence or otherwise of the precondition to the exercise of power and jurisdiction under the Act, namely whether the existing fence is a sufficient dividing fence. 2. We have previously indicated that the matter is to be determined by reference to the provisions of section 4, which we have set out above. We have already noted the physical characteristics of the existing dividing fence, those inadequacies asserted by the respondents and the response of the appellants. 3. It is a trite observation that the sufficiency of the existing dividing fence must be considered in the context of the purposes for which the adjoining lands are used. The only concern expressed by the respondents was that the fence should be sufficient to contain their cattle. We are unaware of the respective areas of expertise of the parties and those persons whose statutory declarations were made available in the course of the hearing before the Member. There are competing opinions about the adequacy of a barbed wire fence with split timber posts versus the adequacy of an electrified wire fence with star posts. However, what needs to be determined is the adequacy of the existing fence to serve the sole purpose which has been identified to apply, namely the ability to contain the respondents' cattle. Even though there is evidence to the effect that the existing fence has served its identified purpose over the last eight years without any intrusion of any of the respondents' cattle on any occasion, the fact remains that we cannot be sure that the parties were directed to focus their attention on the sufficiency of the dividing fence as a precondition to the jurisdiction and power of the Tribunal to deal with the matter, and have been given an opportunity to do so. Accordingly, with some reluctance, we are of the opinion that it is better to allow the parties to reach some appropriate finality on this contentious issue between them by having it reconsidered by the Tribunal constituted by a different Member at a further hearing. The parties will then be able to focus initially on the sufficiency of the existing fence to serve the needs of the respondents, as well as the needs of the appellants concerning the well-being of their horses. Whether and to what extent a five strand barbed wire fence, a post and rail fence, or any other fence would be more effective than an electrified wire fence can then be considered if, and only if the Tribunal determines that the existing fence is not a sufficient dividing fence. 4. We are fortified in this view in that it is consistent with the approach adopted by the Tribunal in Lindsay v Johnston [2014] NSWCATCD 45 which also concerned a dispute about a sufficient dividing fence in a rural setting. The Tribunal was assisted in those proceedings by the fact that one of its members had expertise in appropriate fencing and was able to inspect the fence the subject of those proceedings at a view of the site. In those proceedings that member was satisfied that the existing fence was stock proof if maintained in the usual course of best farming maintenance practices. The decision referred to the understanding and experience of the member that "the propensity of bulls is that most rural fences will not prevent a bull from passing through a fence to get to cows and heifers in the vicinity of the bulls enclosure." 5. We assume that the Member in these proceedings did not have such expertise, because it was not mentioned by him. Certainly, neither of us professes any expertise in this area. Nevertheless, the decision assists in focusing attention on the real issue in these proceedings. Conclusion 1. In all the circumstances, we are satisfied that the appeal must be allowed because the Member failed to consider the sufficiency of the existing fence as required by the Act and the decision under appeal must be quashed. The matter is to be reconsidered by the Tribunal before another Member. ORDERS 1. We make the following orders; 2. 1.the appeal is allowed 3. 2.the order made by the Member in COM 16/20259 is quashed 4. 3.the matter is referred to the Consumer and Commercial Division for reconsideration before another Member. ********** 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: 04 May 2017