Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hylton v Hayes [2019] NSWCATAP 18 Hearing dates: 26 November 2018 Date of orders: 15 January 2019 Decision date: 15 January 2019 Jurisdiction: Appeal Panel Before: R Titterton, Principal Member S Frost, Senior Member Decision: (1) Appeal allowed. (2) Matter remitted to the Consumer and Commercial Division of the Tribunal differently constituted. Catchwords: APPEAL – question of law – denial of procedural fairness – whether a hearing was conducted Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Civil and Administrative Tribunal Act 2013 (NSW) Collins v Urban [2014] NSWCATAP 17 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: Nil Category: Principal judgment Parties: Peter Hylton and Rose Hylton, Appellants Peter Hayes and Amy Henman, Respondents Representation: Solicitors: L C Muriniti and Associates (Appellants) P Hayes & A Henman (Self Represented) (Respondents) File Number(s): AP18/40153 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 26 August 2018 Before: D Moss, General Member File Number(s): COM 17/27282; COM 18/33528 REASONS FOR DECISION Summary 1. This is an appeal from a decision of the Consumer and Commercial Division of the Tribunal (the Tribunal) of 27 August 2018 in proceedings COM 18/33528. 2. The matter involves a dispute between two neighbours in relation to the dividing fence between their respective properties. 3. The matter had its genesis in matter COM 17/27282. In that matter, on 29 November 2017, the Tribunal made the following orders by consent: 1. The applicants arrange for a 1.8 metre timber lap and cap fence to be built along the common boundary line of the two properties the subject of this dispute. 2. That a 1.8 metre timber lap and cap fence be built along the common boundary line of the two properties the subject of this dispute by a fencing contractor of the applicants' choosing. The boundary line is that which is indicated on the survey by DP Surveying, Land & Engineering Surveyors dated 11 January 2016 ref 2832 which is Annexure E to the Statement of Mr Hayes dated 27 July 2017, between the two properties being Lot 51 of DP 239139 and Lot 33 DP 239137. If there is any issue whatsoever about what has been described in this order the parties can apply for access to the Tribunal's file as I have highlighted the common boundary line in orange highlighting. 3. That the contributions for the fencing work be $950 from the respondents and the rest paid for by the applicants. This is on the basis of 50% of the cheapest quotation in evidence today. The respondents are to pay their $950 contribution into the applicants' solicitor's trust account within 14 days of these orders. No order is made against the applicants' solicitor on the basis that he will pay the fencing contractor in accordance with the terms and conditions that bind the applicants and the contractor, in due course, as an officer of the Tribunal. 4. An order determining the time within which the fencing work is to be carried out which is 12 months from today being by 29 November 2018. The respondents must do their best to assist the applicants to complete the fence as per Order 2 as quickly as possible. 5. The parties must allow such access as is reasonably required to enable fencing contractors engaged by the applicants to give further quotations for the proposed fencing work. 6. The parties must allow such access as is reasonably required to enable the construction of the fence by the fencing contractor of the applicant's choice. 1. On or about 27 July 2018, in the proceedings presently under appeal (COM 18/33528), the appellants sought to renew proceedings COM 17/27282. The appellants relevantly sought an order that the respondents "entirely at their own expense remove the non-compliant fence and erect a fence which is compliant with the Council's requirements solely at their own expense". 2. The matter was listed for hearing on 27 August 2018 at 10.45am, with the matter in the Member's list being listed for 11.45am. Shortly before that time, the Tribunal dismissed the appellants' application. As will be seen, what occurred is a matter of contention between the parties. 3. In the Notice of Appeal filed 11 September 2018, and repeated in later Notices of Appeal, the appellants raise three grounds of appeal. The first is that, at the hearing, the Member announced that the matter was only before it that date for mediation and that the proceedings would not be resolved and were not listed for hearing and determination. The appellants sayf that they gave no consent for the matter to be heard and disposed of on that occasion. 4. The second ground of appeal is that the appellants were denied natural justice and procedural fairness because they were not afforded the opportunity to properly present their case and evidence in support of the application and no or no adequate reasons were given for dismissing the application. 5. The third ground is that on 27 August 2018 the Tribunal accepted the submissions of the appellants that the fencing order made on 29 November 2017 in proceedings COM 17/27282 was ultra vires (that is, made beyond the Tribunal's power or authority), apologised for the error but then did not proceed to set the ultra vires order aside. 6. In addition to these matters, the appellants also challenge the consent orders made by the Tribunal on 29 November 2017. They say that the consent orders on their proper construction require the construction of a hardwood fence, and in so far as the orders are construed as authorising the installation of a pinewood fence, the orders are ultra vires. 7. The appeal hearing was held on 26 November 2018. This was unsatisfactory, in the sense that what occurred at the hearing before the Tribunal on 27 August 2018 was highly relevant, but neither party had been able to obtain the sound recording of the proceedings and to provide it to us, and/or to provide us with a transcript of what had occurred. 8. After the hearing, we caused enquiries to be undertaken, with the result that the sound recording was located. On 28 November 2018, we issued the following directions: 1. On or before 15 December 2018, the appellants are to give to respondents and the Appeal Panel: (a) a transcript of those parts of sound recording of the proceedings COM 18/33528 before Member Moss on 27 August 2018 on which the appellants wish to rely on in the appeal; (b) any further submissions in support of the appeal. 2. On or before 7 January 2019, the respondents are to give to the appellants and the Appeal Panel: (a) a transcript of those parts of sound recording of the proceedings before Member Moss on which the appellants wish to rely on in response to the appeal; (b) any further submissions in support of their response to the appeal. 1. Both parties provided submissions as directed. In addition, the appellants provided a complete transcript of what occurred before Member Moss. The parties' submissions 1. The appellants submit that, given the unexpected production of the transcript of what occurred of 26 August 2018, an appeal should be allowed on the basis: 1. there was a denial of procedural fairness in that the Appellants were denied a hearing; 2. in the alternative, there was a constructive failure by the Tribunal to exercise jurisdiction. 1. The appellants seek leave to file a Second Further Notice of Appeal. We do not consider that this is necessary. The procedural fairness ground of appeal is sufficiently raised in the Further Notice of Appeal, and has been a ground of appeal since the commencement of the first Notice of Appeal. 2. The respondents (who were not represented either on appeal or below) submit that the appellants' application to renew the proceedings and their arguments in support are totally misconceived. However, their submissions focus on the merits of the renewal application, rather than the merits of the appeal, or the substance of what occurred before Member Moss. 3. For the reasons that follow, we consider that there was a denial of procedural fairness by the Tribunal on 27 August 2018, that the appeal should be allowed and the matter remitted to the Tribunal to be heard by a different Member. Principles to be applied in appeals 1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides that an appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Relevantly, an internal appeal may be made as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel considered the requirements for establishing an error of law giving rise to an appeal as of right. Without expressing exhaustively possible questions of law, the Appeal Panel in Prendergast referred at [13] to various matters as constituting errors of law. One of these is a denial of procedural fairness: see [13](4); NCAT Act, s 38(2). 3. As the Appeal Panel noted at [13](4), procedural fairness concerns the fairness of the proceedings and not the decision. 4. Any other ground of appeal requires leave. Ordinarily it is appropriate to grant leave to appeal only in matters that involve an issue of principle, a question of public importance, an injustice which is reasonably clear or if the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result: Collins v Urban [2014] NSWCATAP 17 at [84]. Consideration 1. It is appropriate to consider the transcript of what occurred before the Tribunal with some detail. 2. At p 3 of the transcript the Member states, significantly in our view, "I just wanted to point out to everyone at the moment what we say is part of conciliation and confidential so we can speak without fear that it can be used against anyone at a hearing". 1. There then follows a long and extended discussion between the Member and the parties about the matter, with the Member commenting later on p 3 that "[i]t seems to me that the respondent to the renewal application has actually complied with the order and that the order should never have been made". 1. This was a reference to the consent orders providing that the fence was to be built of timber, where it was constructed of treated pine, but the Council requirements were that the fence be built of hardwood or non-combustible material, and the Council subsequently issued a demolition order in relation to the fence, even though it had been constructed in apparent compliance with the consent orders. 2. At p 7 of the transcript Mr Hayes concedes that a non-compliant fence had been built, that it would have to be removed and replaced, but that he thought both parties should share the costs. This is the gravamen of this dispute; the appellants say that the fence should be removed by, and replaced by the respondents, solely at their expense. 3. At p 10, the Member is recorded as saying: I'll just tell you my preliminary view. My preliminary view is that this is an enforcement application of orders made by the tribunal on 29 November 2017. And subject to what the solicitor for the applicant wants to tell me in this matter I am of the view that what has been erected is a 1.8 metre timber lap and cap fence. Unfortunately, the tribunal should have ordered that it be a 1.8 metre hardwood lap and cap fence but the tribunal didn't do that and both parties were here and, present and consented to the making of that order. So both parties have some responsibility in relation to the order that it be just timber and not hardwood. My view is that the order - there's no evidence that the order has not been complied with and therefore the tribunal has no jurisdiction to make an order enforcing the order. However, I would be prepared if the parties agreed to set aside the orders made on 29 November 2017 and make additional orders that would result in a complying fence. However, I think the sticking point is that the respondents want the parties to pay 50 per cent of the removal and construction, of the new fence whereas the applicant doesn't want to pay anything. So I don't think it is capable of settling today. 1. Mr Hayes then asks "how do we go forward from here? The Member responds: Well, I have to let the solicitor make submissions but I like to tell everyone what I'm thinking so the submissions can address what's in my mind. So how about we hear from Mr Muriniti? 1. Mr Muriniti then addresses the Member for some time. At p 16 the Member says: Well, the Tribunal has power to make orders about the type of fence. The tribunal made an order about the type of fence by consent of the parties. I think we have jurisdiction. I don't think its ultra vires. It was wrong. We shouldn't have done it. 1. There was then a short discussion about whether the consent order was ultra vires. The Member comments at p 16 that: I can't enforce an ultra vires order so I just dismiss the application as being misconceived then. 1. There then follows a discussion about "common sense" approaches to resolution of the application, including whether the $950 already paid could be taken into account. At p 18 the Member asks the appellants whether they would be prepared to pay 50 per cent of the costs of the erection of the new hardwood fence less the $950 they had already paid. Ms Hylton responds that "I'm okay to do that". 2. At p 20/21 the Member then comments: So I think it would be reasonable for you to remove it at your own cost but I will just tell you where I think we're at with this application. I think that the tribunal would not be satisfied that it is appropriate to make an order to enforce the orders made by the tribunal on 29 November 2017. From my point of view I believe they have been complied with but even from the applicant's point of view that the black letter of the order is ultra vires, well I can't enforce an order that's ultra vires, and I think I should dismiss the application for renewal. I think that Mr Hayes and Ms Henmen should remove the fence in accordance with the demolition order but I not proposing to make that order but that's a matter for the Council. And then Ms Hylton, you have time to do the works. 1. At p 21 Ms Hylton says she would "love" a period of time to do so. Quotations are then discussed with the Member commenting: And then hopefully you can sort it out between yourselves but if you can't and if the fencing notice isn't complied with then we'll be starting again from fresh. 1. Shortly after this, at p 33, the Member indicates that she had another hearing in 15 minutes. A short break follows. Upon return, there is further discussion about whether Ms Hylton could have 12 months to undertake the works, but on p 23 the Member comments "we're getting off the point". 2. At p 25/26 the transcript then records: MEMBER MOSS: Okay. Look, I just wanted to wind up these proceedings today because I'm of the view that — MS HYLTON: Yes. MEMBER. MOSS: — it's not appropriate to make any order to enforce the inappropriate order that was made on 29 November 2017. But down the track I imagine that there will be a new fencing notice and possibly some new proceedings and the tribunal will deal with it at that point. MS HYLTONS: Okay. MEMBER MOSS: The tribunal acknowledges that the parties have been in conflict in relation to retaining walls and boundary fence for a long time. And it's caused a lot of stress, a lot of sadness, and - you know ~ other things have escalated as well. But the tribunal feels a bit responsible for not assisting the parties by making that order on 29 November 2017, because clearly with the benefit of the demolition order from Council the orders should have specified that it was to be either made of hardwood or Colorbond. And, unfortunately by just saying "timber" it's led to an unsatisfactory situation where both parties have incurred additional unnecessary expense and it's very regrettable. I apologise to the parties for that. I sincerely wish the Hayes family and the Hylton family all the best for the future. I think that a lot has been accomplished today by the manner in which the parties have civilly addressed the real issues in the matter. And I hope that the issue of the retaining wall and the dividing fence could be resolved without you coming back but we're here if you need us in the future. I'd just like to place on the record that the tribunal has been greatly assisted today by the submissions by Mr Muriniti, solicitor. All these submissions were very helpful and appropriate and well thought out and thank you, Mr Muriniti. MR MURINITI: Thank you. Member. MEMBER MOSS: This matter is dismissed. It's not appropriate to make any orders. All the best for the future. 1. It is in those circumstances that the appellants claim that they were denied procedural fairness. In relation to the denial of natural justice, the appellants submit that: * the Member purported to conduct a mediation which was represented to be off the record; * the Member dismissed the proceedings without giving reasons or any adequate reasons; * if the proceedings were dismissed then it was incumbent on the member to announce that a hearing was commencing, to enquire as to the tender of evidence, and to ask the parties to formalise their positions; * In this case it is material that as no evidence had been filed it could not have been thought that the parties were ready for a hearing if one had been offered. 1. We consider that there is substance in these submissions. Overwhelmingly, the transcript supports the contention that what was conducted was a conciliation by the Member for the following reasons. 2. First, the "proceedings" commenced by the Member saying that it was a confidential conciliation. 3. Secondly, no evidence was tendered or read. 4. Thirdly, there was no cross-examination of any party. 5. Fourthly, and significantly, the Member discussed with the parties various avenues for resolution, and the language used by the member is consistent with the Member undertaking a conciliation or mediation, for example: * "I would be prepared if the parties agreed to set aside the orders made on 29 November 2017 . . ."; * " I don't think it is capable of settling today"; * "I think that the tribunal would not be satisfied that it is appropriate to make an order to enforce the orders made by the tribunal on 29 November 2017"; * "I think I should dismiss the application for renewal", are all indications of what the Tribunal might or might or might not do if a hearing was held. 1. With great respect to the Member, the parties could be forgiven for not entirely understanding what was occurring at the "hearing". 2. The only matter that militates against that is that Mr Muriniti, solicitor, for the appellants, made no objection at the time. Nevertheless, as we have noted above, procedural fairness concerns the fairness of the proceedings and not the decision. We consider that, in the circumstances outlined above, a proper hearing was not in fact held by the Tribunal. Conclusion 1. For the reasons set out above, the appeal should be allowed and the matter remitted for determination by another member. Order 1. Appeal allowed. 2. Matter remitted to the Consumer and Commercial Division of the Tribunal differently constituted. ********** 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: 15 January 2019