Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Butler v Gibson [2019] NSWCATAP 86 Hearing dates: 4 October 2018 Date of orders: 12 April 2019 Decision date: 12 April 2019 Jurisdiction: Appeal Panel Before: F Corsaro SC, Senior Member K Ransome, Senior Member Decision: (1) Appeal dismissed. Catchwords: DIVIDING FENCE - Procedural fairness - denial of access ---whether error of law established – whether leave to appeal justified – whether decision just and equitable – whether decision contrary to the weight of the evidence – failure to weigh evidencce Legislation Cited: Dividing Fences Act 1991 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW). Cases Cited: Collins v Urban [2014] NSWCATAP 17 Italiano v Carbone [2005] NSWCA 177 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 O'Neill v T&I Engines Pty Ltd [2015] NSWCATAP 141 Roberts v Morphett Constructions Pty Ltd [2018] NSWCATAP 126 In re Coldham; Ex parte Municipal Officers Association of Australia [1989] HCA 13 (1984) ALR 208 Sullivan v Department of Transport (1978) 20 ALR 323 In Re Media, Entertainment and Arts Alliance, Ex parte Hoyts Corporation Ltd [1994] HCA 66, (1994) 119 ALR 206 Category: Principal judgment Parties: Jody Butler (Appellant) Gregory Gibson and Lisa Gibson (Respondents) Representation: The Appellant, in person The Respondents, in person File Number(s): AP 18/32448 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not Applicable Date of Decision: 25 June 2018 Before: P Smith, General Member File Number(s): COM 18/08258 REASONS FOR DECISION Background to the Appeal 1. The Appellant, Ms Butler, and the Respondents, Mr and Mrs Gibson, are adjoining property owners. One property backs on to the other. On the common boundary, Ms Butler's land is higher than the Gibsons' land, and retained by a lightweight timber and fibre cement sheet retaining wall ("the Wall"). The Wall varies in height. It is 600 mm at one end and gradually slopes towards the other end, to increase to a height of 1.3 m. 2. The shared boundary line ("the Boundary") is 18.2 m long and defined by a corrugated metal sheet, or "Colorbond', fence built on top of the Wall ("the Fence"). The base of the Wall is located at the top of a narrow batter with a stonework facing on the Gibsons' side of the Boundary ("the Batter"). The Batter supports the Wall. The Wall supports the Fence. 3. On 1 May 2017, the Appellants' lawyers, Navado Legal & Financial Group, wrote to Ms Butler's lawyers, McAuley Hawach Lawyers, stating: The dividing fence that runs along the common boundary between your client's property and our client's property has been partially collapsed for some time. A stone and concrete retaining wall runs along the rear of our client's property and supports the partially collapsed fence which is made of colorbond and asbestos… The retaining wall appears to be a foundation or support necessary for the support and maintenance of the dividing fence that has partially collapsed (see s 3 Dividing Fences Act 1991). Under such circumstances, both our clients' (sic) are liable to contribute in equal proportions to the carrying out of the fencing work (s 7 Dividing Fences Act 1991). 1. The Appellants' initial concern about the presence of asbestos resulted in a sample being tested. No asbestos was found. 2. Mr Gibson served a Fencing Notice under section 11 of the Dividing Fences Act 1991 (NSW) ("the Act") dated 18 September 2017, to require fencing works on the Boundary, and to require Ms Butler to share equally in the cost of that work ("the Notice"). The express terms of the Notice reflected the scope of works set out in a quotation from Westcon Landscaping dated 17 July 2017 (the Westcon Quote) and a lump sum price of $24,426.33 for that work ("the Replacement Wall"). 3. The Westcon Quote described the scope of the Replacement Wall as follows: - Dismantle existing colorbond fencing for later reinstallation, removal and disposal of failed retaining wall, remove and dispose of six existing trees located within 1.2 of wall area. - Supply and install temporary fencing to enable a safe work area for the period in which the works are being completed. - Supply and construct "Keystone" block retaining wall (30.6m2 ) inclusive of detailed footing excavation, concrete footing, backfill, double Ag line drainage and geotextile. - Reinstate existing colorbond fence using existing materials (replacement parts are not provided in this quote). 1. The reference to a "Keystone block retaining wall" in the Westcon Quote was to a pre-cast, modular, stackable block, landscape retaining wall system with backfill on the Butler's side of the Boundary ("the Replacement Wall"). So much would have been obvious from its description on the Westcon Quote. The type of backfill material did not appear on the face of the Westcon Quote, but the fair inference is that Westcon was proposing to use suitable backfill to provide the necessary support. 2. The Notice reflected other ancillary works and their associated costs: 1. surveying costs, which were estimated to cost $1,732.50 (inclusive of GST) ("the Survey Costs"); 2. Sydney Water sewer related works estimated to cost, $2,530.00 (inclusive of GST) ("the Sewer Costs"); 3. engineering design fees, which were estimated to cost $2,365.00 (inclusive of GST) ("the Design Fees"); and 4. council fees, which were estimated to cost $349.00 (inclusive of GST) ("the Council Fees"). 1. In support of the Design Fees, the Notice included a fee proposal from the engineer who would provide the detailed structural design of the work set out in the Westcon Quote, Mr David Hall. Mr Hall's fee estimate for the design, dated 21 November 2017, was included with the Notice ("the Hall Fee Proposal"). 2. Using Ms Butler's terminology, Ms Butler disagreed with the "proposal". She regarded the Replacement Wall as not the most suitable solution. 3. On 15 February 2018, the Gibsons filed an Application in the Tribunal. The Application claimed orders that the Tribunal determine the fencing work and the manner in which contributions were to be made under section 14 of the Act. The Application relied on the Notice, and made clear that the scope of work which the Gibsons would maintain as the required fencing works were those which Westcon had quoted for, and which Mr Hall would design. 4. The Tribunal heard the Application on 25 June 2018. The Gibsons relied on the following documentary material at the hearing ("the Gibson Hearing Bundle"): 1. a chronology; 2. a copy of various text messages and emails passing between Mr Gibson and Ms Butler, and correspondence passing between the Gibsons' lawyers and Ms Butler's lawyers; 3. a dial-before-you-dig document; 4. the Asbestex report and invoice relating to the asbestos test carried out; 5. a copy of the Application filed with the Tribunal with photographs and quotes, including the Westcon Quote and the Hall Fee Proposal; 6. a hand drawn elevation of the Replacement Wall viewed from the Gibsons' side of the Boundary, but reflecting the natural ground level and the existing ground level on Ms Butler's side of the Boundary. This also set out the length of the Boundary line, and the dimensions and configuration of the new "Keystone" wall showing that it would have a relatively uniform height of 1.8 m, replacing the Wall and the Batter ("the Elevation Drawing"); and 7. Survey and invoice from C & A Surveyors NSW Pty Ltd. 1. The Gibsons did not press their claim that Ms Butler contribute to the Survey Costs at the hearing. Accordingly, the Tribunal was not required to determine that issue. 2. On 25 June 2018, the Tribunal delivered its decision. It found that: 1. the Wall had failed and was not an effective retaining structure. There is no challenge to this finding on appeal; 2. the Wall (which the Appeal Panel takes as including the Batter) was a "dividing fence", within the definition in s 3 of the Act, as a supporting structure for the Fence. There is no challenge to this finding on appeal; 3. Ms Butler had provided no evidence of as to the scope or cost of any alternative remedial works, or the cost of any proposed works. There is no challenge to this finding on appeal; and 4. on the basis of the evidence, the Replacement Wall with the reinstated Fence, was a structurally sound and suitable outcome for the parties, which did not exceed the limits of the standard required for a "sufficient dividing fence" under the Act. This finding is challenged on the various grounds set out in the Notice of Appeal. 1. The Tribunal ordered that the Replacement Wall was to be constructed by 25 September 2018, and that Ms Butler and the Gibsons were each to pay $11,208.00 as an equal contribution to the cost of that work. It is obvious that by this finding the Tribunal was referring to the scope of works which Westcon had quoted, and the cost of those works as set out in the Westcon Quote. 2. The Tribunal rejected the Gibsons' claim for contribution orders for the Sewer Costs, the Design Fees and the Council Fees, without explanation. The Gibsons do not appeal the Tribunal's rejection of this part of their claim, nor do they appeal the Tribunal's contribution order. 3. On 23 July 2018, Ms Butler filed a Notice of Appeal (dated 19 July 2018) to appeal the Tribunal's orders. The Notice of Appeal was filed within the time period specified in rule 25(4) of the Civil and Administrative Tribunal Rules 2014 (NSW). 4. The Tribunal's orders were stayed on the Appellant's application filed with the Tribunal on 21 August 2018. The grounds for the stay included that: [Ms Butler had] now produced an engineers (sic) proposed work for the project which indicate[d] the retaining wall to be built being moved from the boundary line into [Ms Butler's] property, and [that] the proposed works contravenes the product guideline for support from the manufacturer for the height of the retaining wall. … Page 2 of an consulting engineers (sic) report confirming this and believes it does not comply with the Earth Structures Code AS 4678:2002. 1. The reference to the "engineer's report" in the stay application was to an engineering report from Mr John Vardouniotis (Kneebone & Beretta) dated 2 August 2018 ("the Vardouniotis Report"). In opposing Ms Butler's stay application, the Gibsons relied on the documents which included: 1. a copy of Mr Hall's structural design drawing for the Replacement Wall dated 6 August 2018 ("the Hall Replacement Wall Drawing"); and 2. a copy of a document providing guidelines for a "Keystone" retaining wall system, showing "no fines concrete" (NFC) as a suitable form of backfill for a "Keystone" retaining wall to a height of 2600mm ("the Guidelines"). Denial of Access – Ground B[1] of the Notice of Appeal 1. Ground B[1] in the Notice of Appeal raises that Ms Butler and her contractors were refused access to the Gibson property, and that "therefore [Ms Butler] could not provide evidence in the hearing." The Notice of Appeal characterises this as an error of fact. 2. Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80 (2) Civil and Administrative Tribunal Act 2013 (NSW) ('the NCAT Act'). 3. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12], the Appeal Panel stated that where an appellant is not legally represented, the Appeal Panel may approach the appeal by generally examining the grounds of appeal to determine whether the appellant has, in fact, raised a question of law (subject to procedural fairness considerations that might apply). Ms Butler also raises the issue of a denial of access in Part B of the Notice of Appeal in the context of challenging the Tribunal's orders on the basis that they were not just and equitable, and were contrary to the weight of the evidence. In this section of the Notice of Appeal, Ms Butler contends that 'the member had the ability to adjourn the hearing with an order for access' because the denial of access deprived Ms Butler of the opportunity of providing evidence to establish why the Replacement Wall was not a suitable solution to the problems along the Boundary. 4. Adopting the approach in Prendergast v Western Murray Irrigation, the Appeal Panel considers that the way that Ms Butler has agrued the denial of access ground raises an issue of a denial of procedural fairness, in addition to the grounds set out in Part B of the Notice of Appeal. The issue is whether Ms Butler was deprived of the opportunity to reasonably present her case to the Tribunal because the Gibsons denied her access to their property. This relates to an error of law, a matter which Ms Butler is entitled to raise on appeal as of right, rather than requiring leave to appeal. 5. The Tribunal had evidence of the following email exchange between Ms Butler and Mr Gibson: 1. On 17 April 2018, Ms Butler sent an email to Mr Gibson which relevantly said: Could you pls grant permission for our contractors to access your property to provide alternative quotes. I would ensure that I was present whilst they are there. 1. Mr Gibson's email in reply on 18 April 2018 said: We will grant permission for contractor and yourself to access the property for alternative quotes, however, there will also be a need for me to be present during this time and neither your contractor or yourself are to access the property without me present. I will also require some notice to ensure that I do not have any prior appointments. Also the retaining wall will need to be quoted in the same design as the quote we already have otherwise it will not be a true comparison. (In simple terms apples for apples and not apples for oranges). If you are not willing to get quotes done in this way then there is no point and I will deny your access. 1. Ms Butler submitted that Mr Gibson's 18 April 2018 email imposed unreasonable conditions on Ms Butler obtaining access to the Gibsons' property, and that this meant that: 1. the Gibsons had effectively denied Ms Butler, and any expert, access to their property; and 2. Ms Butler was unable to obtain the evidence as to why the Replacement Wall was not the most suitable scope of works to rectify the Boundary structures. 1. The Tribunal's reasons overall are very brief. They do not set out every submission made by the parties. They do refer to the fact that Ms Butler had not provided evidence of any alternative works and costings. On that issue, the Tribunal said: The respondent has not provided any evidence of the nature or cost of an alternative structure or the cost of rectification. The respondent did not object to access to the applicant for the purpose of obtaining a report and the respondent could not be bound by the suggestion by the applicant attempting to limit the scope of the report. 1. It is necessary to closely analyse this part of the Tribunal's reasons. If one were to read the second sentence of this passage strictly, it suggests that the Tribunal turned from the issue of Ms Butler's failure to provide evidence to a consideration that Ms Butler granted permission to the Gibsons to enter her property, a totally unrelated matter. The passage must be read in proper context, and by reference to the issue being considered at that point: why Ms Butler had no evidence, and how denial of access may have affected that position. It is necessary to construe the Tribunal's reasons sensibly, and by reference to that issue. Seen in that light, the passage of the Tribunal's reasons referred to above is actually a finding that: 1. Ms Butler was not denied access to the Gibsons' property; and 2. the absence of evidence from Ms Butler was not explained by some denial of access to the Gibsons' property. 1. In the Reply to Appeal dated 9 August 2018, the Gibsons refer to Mr Gibson's 18 April 2018 email. They contend that "at no time did [Ms Butler] respond to the email or ask for clarification". The Reply to Appeal also submits: The Appellant had sufficient time to prepare the file for the hearing as well as being granted a time extension. Once again, the Appellant never replied to our email dated 18/4/2018 (page 9 of the Applicant's folder) for further discussion or clarification of access. 1. The Appeal Panel's decisions in O'Neill v T & I Engines Pty Ltd [2015] NSWCATAP 77; Armee v Brealey [2017] NSWCATAP 141, Roberts v Morphett Constructions Pty Ltd [2018] NSWCATAP 33, and Liang v Wincrest Group Pty Ltd [2018] NSWCATAP 126 make clear that, although matters are expected to be heard on the allocated hearing date, and compliance with Tribunal directions and prejudice to the other party are important factors mitigating against the granting of an adjournment, a failure to adjourn proceedings which has the practical effect of depriving a party from having the reasonable opportunity of adequately presenting its case may constitute a denial of procedural fairness. 2. Irrespective of whether a party makes an application for an adjournment, circumstances may sometimes exist which would warrant the Tribunal raising with a party whether or not it is seeking an adjournment, and that the failure to do so and properly rule on any adjournment application may be a denial of procedural fairness: Italiano v Carbone [2005] NSWCA 177 at [105]. 3. The Appeal Panel is of the view that if Ms Butler took Mr Gibson's 18 April 2018 email as imposing unreasonable and unacceptable conditions to her having access to the Gibsons' property, Ms Butler could have applied to the Tribunal for the necessary orders before the date the matter was listed for hearing. The Appeal Panel considers that Ms Butler could have made that application, and obtained access orders from the Tribunal well before the hearing on 25 June 2018, with sufficient time to enable an expert to prepare a report on the scope and costs of remedial works Ms Butler wished to advocate dor. If there was insufficient time, Ms Butler could have applied to the Tribunal for the appropriate directions, including if necessary, the adjournment of the hearing date to allow her sufficient time. Ms Butler did not submit that she did not take this course because she was unaware of the Tribunal's powers. The grounds of appeal include the following statement by Ms Butler: "The member had the ability to adjourn the hearing with an order for access". 4. Ms Butler's submission that 'the member had the ability to adjourn the hearing with an order for access" raises the possibility of a denial of procedural fairness because the Tribunal failed to unilaterally exercise its power to adjourn proceedings to enable Ms Butler to obtain access to the Gibsons' property. 5. The rules of procedural fairness only require a party to be given a reasonable opportunity to present their case, not as imposing a duty on the Tribunal to ensure that a party takes the best advantage of that opportunity. For example, in In Re Coldham; Ex parte Municipal Officers Association of Australia [1989] HCA 13; (1989) 84 ALR 208 at 220, Gaudron J said: As was pointed out by Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 343, procedural fairness requires only that a party be given "a reasonable opportunity to present his case" and not that the tribunal ensure "that a party takes the best advantage of the opportunity to which he is entitled." And it is always relevant to inquire whether the party or his legal representative should reasonably have apprehended that the issue was or might become a live issue: see Re Building Workers' Industrial Union; Ex parte Gallagher [1988] HCA 4; (1988) 62 ALJR 81 at 84; ALR 353 at 358. 1. In Sullivan v Department of Transport (1978) 20 ALR 323 at 342, Deane J said: Where a Tribunal is under a duty to act judicially, the principle that a party must be given a reasonable opportunity to present his case is at the heart of the requirements of natural justice which it is obliged to observe … If, in all the circumstances, the failure of the Tribunal to adjourn the matter to enable Dr Evans to be called as a witness or to alert the appellant of his right to apply for such an adjournment constituted a denial to the appellant of a reasonable opportunity of presenting his case, both the common law principles applicable to a tribunal under a duty to act judicially and the specific provisions [of the Act] entitle the appellant to the intervention of this Court. After referring to the provisions of the relevant Tribunal legislation there, his Honour went on to say at p 343 (10): A refusal to grant an adjournment can constitute a failure to give a party to proceedings the opportunity of adequately presenting his case. If the Tribunal had, in the present matter, refused an application by the appellant for an adjournment … that refusal may well have constituted such a failure. No such application for an adjournment was, however, made. If it had been made, it is highly probable that the Tribunal would have acceded to it: indeed, counsel who appeared for the appellant stated that he did not dispute that, if the appellant had applied for an adjournment, the Tribunal would have granted it. The absence of any application for an adjournment does not, however, necessarily conclude the issue adversely to the appellant. The failure of a Tribunal which is under a duty to act judicially to adjourn a matter may, conceivably, constitute a failure to allow a party the opportunity of properly presenting his case even though the party in question has not expressly sought an adjournment (see Priddle v Fisher & Sons [1968] 1 WLR 1478; [1968] 3 All ER 506. In this regard, however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled. 1. In Re Media, Entertainment and Arts Alliance, Ex parte Hoyts Corporation Pty Ltd [1994] HCA 66; (1994) 119 ALR 206 at 213, the High Court said: Outside a criminal trial, there is no requirement that a judge or member of a tribunal do more than afford a party a reasonable opportunity to present his or her case. In particular, there is no requirement to point to arguments or evidence that may assist in making the case. 1. Underlying Ms Butler's submissions on the alleged denial of access by the Gibsons, is the proposition that it was not possible for Ms Butler to obtain expert evidence of an alternative scope of rectification works, without access to the Gibsons' property. The second part of the Vardouniotis Report, which Ms Butler seeks to rely on as "new" evidence, provides Mr Vardouniotis' opinion as to what he regards as a more economical alternate replacement structure for the Wall and Batter. He suggests there that a retaining wall built with galvanised steel posts into concrete piers installed into the ground on the Gibsons' property with pine walers or sleepers is more appropriate and more cost efficient than the Replacement Wall, as quoted in the Westcon Quote. 2. The Vardouniotis Report makes clear that Mr Vardouniotis was able to come to his view about an alternative scope of works, without obtaining access to the Gibsons' property. The Appeal Panel is not convinced that Ms Butler was not in a position to obtain this type of evidence before the hearing, without obtaining access to the Gibsons' property. 3. The Tribunal made directions that gave Ms Butler the opportunity to serve evidence in the lead up to the hearing. Therefore the Tribunal satisfied its obligation to give Ms Butler a reasonable opportunity to present her case to the Tribunal. It was for Ms Butler to make use of that opportunity. Ms Butler had the opportunity to apply to seek the Tribunal's assistance in remedying any legitimate difficulty which she perceived in obtaining any necessary evidence in that regard. It was for Ms Butler to make use of that opportunity. The Appeal Panel does not consider that Mr Gibson's 18 April 2018 email removed those opportunities. 4. Ms Butler did not follow up Mr Gibson's 18 April 2018 email. Ms Butler did not obtain an engineering report before the hearing presenting the alterantive scope of works which Mr Vardouniotis recommends in the Vardouniotis Report. Ms Butler did not apply to the Tribunal for an order to require the Gibsons to grant access to their property, on whatever terms she considered to be reasonable or appropriate. In all of the circumstances, the Appeal Panel does not see any error in the Tribunal's determination on the basis of the the Gibson Hearing Bundle. There was no denial of procedural fairness to Ms Butler. 5. The Appeal Panel dismisses ground B[1] of the Notice of Appeal. Engineer's Report – Ground B[2] of the Notice of Appeal 1. The Tribunal found: The Tribunal has only the evidence from [the Gibsons] including a detailed quotation and engineers (sic) report. Ground B[2] of the Notice of Appeal arises out of this part of the Tribunal's reasons. 1. It is common ground that the Tribunal did not have "an engineer's report". The Tribunal had the Gibson Hearing Bundle, which did not contain a report by an engineer. 2. Ms Butler's challenge suggests that the Tribunal referred to something that it did not have, and presumably that the Tribunal's findings were based on a document that did not exist. The Appeal Panel does not accept that submission. In referring to "an engineer's report" in circumstances where the Tribunal had the Gibson Hearing Bundle, the Tribunal should be taken as intending to refer to something that was before it, rather than manufacturing something that did not exist. In the Reply to Appeal, the Gibsons make this concession: We agree that an engineer's report was not submitted into evidence, perhaps it should have said engineers (sic) quote rather than engineers (sic) report? 1. The Appeal Panel accepts that submission. 2. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl. 12(1) of sch. 4 of the NCAT Act. The fundamental requirement for leave to appeal is that the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal 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. In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl. 12(1) of sch. 4 may have been suffered where: "… [T]here was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance." 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl. 12(1) of sch. 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) 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; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) 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. 1. To successfully challenge the Tribunal's orders because the Tribunal's mistaken reference to an "engineer's report", Ms Butler must establish that this error means that the orders made were not fair or equitable or against the weight of evidence. 2. The Tribunal's finding that the Wall had failed, and was not retaining Ms Butler's is a finding open on the following material which the Tribunal had before it, and does not depend on any requirement for "an engineer's report": 1. Ms Butler's acceptance that the Wall had deteriorated, and as a consequence the Fence had to be removed to be later reinstated; 2. the photographs of the nature and state of the Wall and the Fence, particularly those reproduced at pages 52 to 57, 59, 65, 67 and 68 in the Gibson Hearing Bundle; and 3. the Westcon Quote. All of this material was logically probative of the requirement to remove the fence, and to replace the Wall and the Batter with the scope of work referred to in the Westcon Quote. 1. As the Tribunal was entitled to make the orders that it did on its assessment of the material before it, and there was no denial of procedural fairness to Ms Butler, the Tribunal's misdescription of the Hall Fee Proposal as "an engineer's report" does not make the Tribunal's decision unfair and inequitable, nor against the weighf of the evidence. A significant possibility did not exist of a more favourable or a different result if the mistaken reference to the engineer's report was corrected. There is nothing in the Tribunal's reasons that demonstrates the Tribunal did not come to the findings that it made based on the Gibson Hearing Bundle, but rather on the basis of some non-existant document. 2. Even if that were incorrect, the Appeal Panel would not exercise its discretion to grant leave to appeal. As it has said, the findings made were open on the Tribunal, and the correction of the error which Ms Butler has raised would lead to the same result. There is no matter of principle nor any matter of public importance, nor any injustice as the Tribunal was entitled to make the findings that it did on what was in the Gibson Hearing Bundle. 3. The Appeal Panel dismisses ground B[2] of the Notice of Appeal. Incorrect assumption as to safety and longevity – Ground B[3] 1. Ground B[3] of the Grounds of Appeal relies on Ms Butler establishing that the Tribunal made the orders that it did "on the assumption of safety and longevity", and this was an incorrect factual finding. This ground of appeal requires the Appeal Panel's leave to appeal. The particular finding made by the Tribunal was: The proposal by [the Gibsons] provides for a structurally sound resolution …to ensure safety and longevity 1. In arguing this ground of appeal, Ms Butler seeks to rely on the following "new" evidence which not before the Tribunal: 1. the Hall Wall Drawing, and a copy of the enlarged section A-A shown approximately at the mid-point of the Boundary line on that drawing; 2. a part of an Australmasonry "Keystone" broduct brochure ("the Keystone Brochure"); 3. the Australmasonry Email; 4. a page from a "Boral" Guidelines for a Keystone retaining wall system ("the Boral Guidelines"); and 5. the Vardouniotis' Report. 1. The Appeal Panel has a discretion to receive new evidence on an appeal. That discretion must be exercised by reference to the consideration as to whether that evidence was available at the time of the hearing and, if so, why it was not relied on. Other factors that may be relevant include whether it is likely that the new evidence would have produced a different result at the Tribunal: eg BCL v NSW Trustee and Guardian [2014] NSWCATAP 18 at [26] to [28]; Mielczarek v Commissioner for Fair Trading [2016] NSWCATAP 217 and any prejudice caused to the other party if the new evidence was received. There may be other matters which are also relevant to that discretion. 2. The Hall Wall Design was served by the Gibsons with the Reply to Appeal and the Gibsons' relied on the Hall Wall Design on Ms Butler's stay application. The Tribunal's file contains a copy of a letter from the Gibsons to the Tribunal dated 21 September 2018 in which the Gibsons indicated that, if the Tribunal permitted Ms Butler to rely on material which Ms Butler filed and served outside the time limit of the directions made for the hearing of the appeal on 14 August 2018, the Gibsons would seek to rely on other documents at the appeal hearing, including: 1. the Hall Replacement Wall Drawing; 2. the Guidelines; and 3. an email from Mr Hall relating to his structural design, which the Gibsons relied on in response to Ms Butler's stay application dated 3 September 2018 ("the Hall Email"). 1. To the extent that both parties want to rely on the same documents, then the Appeal Panel sees no reason to deny the parties that opportunity. Accordingly, it exercises its discretion to permit both parties to have regard to: 1. the Hall Replacement Wall Drawing; 2. the Keystone Brochure; 3. the Boral Guidelines; and 4. the Manufacturer's Email for the purposes of dealing with ground B[3] of the Notice of Appeal. 1. The Hall Replacement Wall Drawing shows the Replacement Wall has been designed by Mr Hall to the height of 1.8 m, the height of the proposed "Keystone" wall shown on the Elevation Drawing. However, Ms Butler relies on the Vardouniotis Report to establish that: 1. the Replacement Wall requires "no fines concrete" ("NFC") backfill to resist earth pressures, and as the Westcon Quote did not refer to NFC, the reasonable inference is that the scope of work which Westcon proposed to erect does not comply with the Earth Retaining Structures Code AS 4678: 2002 ("the Code"); and 2. as the Elevation Drawing gave no detail as to how the Fence's supporting posts would be fixed for the purposes of reinstalling the Fence after the construction of the replacement "Keystone" block retaining wall, Westcon incorrectly assumed that the posts could be positioned within the "Keystone" blocks. 1. This part of the Vardouniotis' Report was prepared before the Hall Replacement Wall Drawing, and accordingly is not to be understood as a criticism of the Westcon scope of works as designed to be built by Mr Hall. Any fair reading of the Vardouniotis Report reveals that Mr Vardouniotis' concerns were about the Westcon Quote and the Elevation Drawing, not the Hall design of the Replacement Wall. 2. The is no reason why the Vardounioutis Report could not have been obtained by Ms Butler and made available at the hearing. The Appeal Panel's consideration as to whether to allow Ms Butler to rely on the Vardouniotis Report, must be considered in the light of: 1. the Hall Replacement Wall Drawing; 2. the Manufacturer's Email on which Ms Butler relies; and 3. the Mr Hall Email, particularly having regard to the Gibsons' indication that they would seek to rely on this because of the late receipt of Ms Butler's material: letter from the Gibsons to the Tribunal dated 21 September 2018. 1. The Hall Email provides the following commentary about the structural design of the Replacement Wall as designed by Mr Hall, and documented in the Hall Replacement Wall Design Drawing: I have read the comments made by [the Vardouniotis report] regarding [the Hall Design Drawing]. I advise the following: (1) The Colorbond fence is not mounted on the "Keystone blocks". It is located in the no-fines concrete. This is normal and adequate. 1. This clearly meets the following criticism by Mr Vardouniotis' in the Vardouniotis Report: It is difficult to properly mount a colorbond fence directly onto a stackable block retaining wall. This is because the post fixing can only engage an individual block which would not be sufficient to resist wind loading arising from the fence over. 1. The Hall Replacement Wall Drawing shows the Fence posts not in the "Keystone Blocks" but in the NFC, positioned along the Boundary line. 2. The Vardiounotis Report states: Keystone blockwork…can only retain soil heights up to 1m maximum. Heights between 1m to 1.5 m require the use of no fines concrete backfill to assist in creating additional weight to resist earth pressures. Heights beyond 1.5 m require the use of earth reinforcement using Tensar Geogrids which require a substantial excavation width often equal to or close to the height of the wall. 1. On this issue, the Hall Email states: 2. Keystone retaining walls with no-fines concrete backfill can be constructed upt to at least 2600 mm high. Attached is [the Guideline] that shows this type of wall up to 2600 mm high. Note that Austral (Keystone) don't design the walls, they only supply the materials and give the guidelines. Individual walls are designed and certified by consulting structural engineers such as myself … 4. I have been designing retaining walls for more than forty years. In my opinion the Keystone retaining wall shown on my Drawing…is structurally adequate to withstand the loads expected to be imposed upon it. 1. Further, the Manufacturer's Email states: Keystone walls can only be built up to 1m high and need reinforcement above those heights. Our brochure provides some guidelines regarding using Geogrids (sic) or NFC [meaning "No Fines Concrete"] as a reinforcement. Geogrid is usually more economical and hence is always used for higher walls. Please remember. Keystone is a commercial blocks (sic) is often used for walls up to 10 to 14m high. In commercial space, higher walls starts (sic) from 5m to 6m and below these height NFC is widely used instead of Geogrids (sic) because of smaller Base/Height ratio. 1. In other words, the Manufacturer's Email makes clear that No Fines Concrete (NFC) is a structurally acceptable backfill for a "Keystone" block retaining wall up to a height of 14m, and that the Tensor Geogrids, to which the Vardouniotis Report refers are used not because they are the only suitable backfill, but is because it "is usually more economical" above 1m. The Manufacturer's Email does not question the use of NFC as a structurally adequate backfill material for a "Keystone" block wall to a height of the replacement "Keystone" wall here. 2. As the Appeal Panel stated earlier, the Vardouniotis Report not only comments on Westcon Quote and the Elevation Drawing, but also suggests an alternative scope of works to the Replacement Wall. The Appeal Panel considers that Ms Butler has not provided any reason as to why this evidence should not have been available and served before the hearing, to enable the Gibsons to obtain any evidence they considered appropriate to deal with this proposition. The Appeal Panel finds there has been no adequate explanation by Ms Butler to justify the late preparation of the report, and the consequential prejudice to the Gibsons in dealing with the material justifies the Appeal Panel refusing Ms Butler leave to rely on the Vardouniotis Report. 3. In summary, the Appeal Panel the Appeal Panel does not see any error in the Tribunal's determination that the Replacement Wall provided a structurally sound resolution to ensure "safety and longevity" as a dividing fence which had to also act as a retaining wall. 4. The Appeal Panel dismisses ground B[3] of the Notice of Appeal. Incorrect Length of Boundary Line – Ground B[4] 1. The Tribunal's reasons refer to the Application being to remove 22.1 metres of Colorbond fence for later reinstallation, and the supply and construction of 22.1 metres of "Keystone" block retaining wall. It is common ground that the Boundary was 18.2 m long. The Tribunal's reference to the application concerning boundary works over 22.1 m, rather than 18.2 m is incorrect, but the Tribunal's error was of no consequence in the ultimate findings and orders made. 2. The Tribunal's orders are for the following fencing works: Dismantle existing colorbond fence for later reinstallation Removal and disposal of existing failed retaining wall. Construction of Keystone retaining wall and detailed footing excavation, concrete footing, backfill, Ag line (double if required) and geo textile Reinstate existing colorbond fence. 1. The contribution order made by the Tribunal was that Ms Butler and the Gibsons were each to pay $11,208.00 as an equal contribution to the cost of that work. 2. The Tribunal reasons referred to the Gibsons' reliance on a "detailed quotation". The Gibson Hearing Bundle only referred to one "detailed quotation", namely the Westcon Quote. The Gibson Hearing Bundle also included the Elevation Drawing. That indicated the Boundary line as 18.2 m long. 3. The Tribunal's orders were not actually conditioned on a 18.2 m long boundary line, but actually on the basis of the Westcon Quote. The reasons give prominence to a "detailed quotation", and the Westcon Quote was the only document before the Tribunal that satisfied that description: see p 2 of the Tribunal's reasons. The only costs provided to the Tribunal for the Replacement Wall were the costs that made up Westcon's lump sum cost of the Replacement Wall. This was the basis for the contribution order made, not a cost assessment based on works along a 22.1 m long boundary line. There is no submission put by Ms Butler that the Westcon Quotation or that the Notice actually claimed for a boundary wall which was longer than the parties agreed it was. 4. As the Appeal Panel does not consider the Tribunal's orders as predicated on the Boundary being 22.1 m long, as opposed to the Tribunal's acceptance of the scope of works and costs set out in the Westcon Quote, there was no lack of procedural fairness, the Tribunal's decision was not fair and inequitable, and the matters referred to by Ms Butler would not have been circumstrances which would have resulted in a "significant possibility" or a "chance which was fairly open" to having produced a different outcome. The Appeal Panel would not exercise its discretion to grant leave to appeal in any event. There is no issue of principle. There are no questions of public importance or matters of administration or policy which might have general application. The error has not caused any injustice. 5. The Appeal Panel dismisses ground B[4] of the grounds of appeal. Not Fair and Equitable and the weight of evidence – Part B of the grounds 1. The Appeal Panel has earlier referred to the Appeal Panel's consideration of the statutory regime relevant to these grounds on which Ms Butler seeks leave to appeal in Collins v Urban [2014] NSWCATAP 17. Ms Butler must satisfy two requirements. First, to satisfy the Appeal Panel that she may have suffered a substantial miscarriage of justice because the Tribunal decision was not fair and equitable, or against the weight of evidence as she contends. It is only if the Appeal Panel is satisfied on that first issue that the Appeal Panel goes on to determine whether it should exercise its discretion to grant leave to appeal. 2. Ms Butler challenges the Tribunal's orders on the basis that the Tribunal's decision was not fair and equitable and contrary to the weight of evidence on the following basis: 1. first, the Gibsons' denied here access to their property; and 2. second, that the Tribunal's order relates to a "proposal" and "not a professional scope of works"; 3. third, the Gibsons ignoring Ms Butler's requests for the Gibsons to provide her with a "detailed scope of works"; and 4. Ms Butler's "multiple objections to [as] lack of cost effective options" both verbally and "in evidence submitted". 1. The Appeal Panel has discussed the issue of the alleged denial of acces earlier. There was no denial of procedural fairness, and to the extent that Ms Butler did not rely on evidence on an alternative scope of rectification or replacement of the Wall and Fence, that did not result from any denial of access on the part of the Gibsons. 2. To the extent that this was the scope of work which the Gibsons maintained as necessary to rectify the problems on the Boundary, then it can be described as the Gibson's "proposal". But to the extent that Ms Butler inferentially submits that the scope of works was uncertain or could not form the basis of a fencing order, then the Appeal Panel would reject that submission. First, the scope was sufficiently certain to permit Westcon to offer a lump sum price to carry it out. Secondly, the scope was sufficiently defined for what it was: the removal of an existing sheet metal fence, the replacement of a timber and fibre cement retaining structure which had bowed and failed along the Boundary, supported on a narrow batter of soil on the Gibsons' land, with a "Keystone" block retaining wall and then the subsequent reinstallation of the Fence, which a contractor was agreeing to build for a certain specific amount of money. 3. The Appeal Panel has earlier considered that the Tribunal's findings were open on the evidence on which the Gibsons relied at the hearing, as described in the documents included in the Gibson Bundle. Similarly, the Appeal Panel does not accept Ms Butler's submission that the Tribunal's decision was not fair and equitable because Ms Butler requested the Gibsons to provide her with further detail, or to to provide what she considered to be a more "cost effective option" or a more "detailed scope of works", or Ms Butler's "multiple objections to [as] lack of cost effective options". At the end of the day, Ms Butler had the opportunity to provide the Tribunal with evidence as to why the Replacement Wall which was the subject of the Westcon Quote was not an appropriate scope of fencing works, and therefore, for the Tribunal to order. 4. The Appeal Panel considers that the Tribunal was entitled to make the fencing orders that it made on the material it had. Nothing in the Act requires the Tribunal to only make a fencing order only if based on a "professional scope of works". The Tribunal is entitled to make a fencing order based on the Tribunal's consideration of the evidence before it, and the Westcon Quote gave sufficient description to enable the Tribunal to find that this was the work that had to be implemented. The Appeal Panel sees no error in the Tribunal's finding, and nothing which would mean the Tribunal's determination was not fair and equitable. 5. The Appeal Panel is of the view that the circumstances on which Ms Butler relies have not resulted in a "significant possibility" or a "chance which was fairly open" that there would have been a different outcome in the Tribunal. 6. A decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach. Ms Butler has not made this ground out. 7. As the Appeal Panel has already said, the Tribunal was entitled to proceed on the basis of the Gibsons' evidence, including the documents included in the Gibson Bundle, and there was no evidence to the contrary on which Ms Butler relied. Accordingly, the Appeal Panel rejects the submission that the Tribunal's decision was contrary to the weight of the evidence, and dismisses this ground of appeal. 8. In summary, the Appeal Panel dismisses Ms Butler's appeal. ********** 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: 12 April 2019