Amanda Levet and Bruce Levet v Moira Dalla
[2012] ACTSC 23
•10 February 2012
AMANDA LEVET AND BRUCE LEVET V MOIRA DALLA
[2012] ACTSC 23 (10 February 2012)
APPEALS – application for leave to appeal from ACT Civil and Administrative Tribunal – application under Unit Titles Act 2001 – principles to be applied on application for leave – amount of money at issue in practical terms – no question of law needing to be resolved – no obvious error in factual findings or error of law – leave to appeal refused.
ACT Civil and Administrative Tribunal Act 2008, Pt 4, ss 6, 7, 8, 23, 26, 48, 81, 86, 88
Unit Titles Act 2001
Court Procedures Rules 2006, r 5102
Yared v Glenhurst Gardens Pty Ltd [2002] NSWSC 11
Owners Strata Plan 4085 v Mallone [2006] NSWSC 1381
Robson v Leischke [2008] NSWLEC 152
Leakey v National Trustfor Places of Historic Interest or Natural Beauty [1980] QB 485
Lucas v Commissioner for Social Housingfor the ACT [2011] ACTSC 11
Classic Constructions (Aust) Pty Ltd v Conservator of Flora and Fauna [2005] ACTSC 103
Niemann v Electronic Industries Limited [1978] VR 431
Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Capital Property Projects (ACT) Pty Ltd v Australian Capital Territory Planning & Land Authority (2008) 2 ACTLR 44
McKenna v McKenna [1984] VR 665
Perry v Smith (1901) 27 VLR 66
Re the Will of FB Gilbert (Deceased) (1946) 46 SR (NSW) 318
Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 4) (1998) 86 FCR 399
Fredericks v May (1973) 47 ALJR 362
Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317
No. SCA 73 of 2011
Master Harper
Supreme Court of the ACT
Date: 10 February 2012
IN THE SUPREME COURT OF THE )
) No. SCA 73 of 2011
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:AMANDA LEVET AND BRUCE LEVET
Applicants
AND:MOIRA DALLA
Respondent
ORDER
Judge: Master Harper
Date: 10 February 2012
Place: Canberra
THE COURT ORDERS THAT:
the application be dismissed.
the applicants pay the first respondent’s costs.
This is an application for leave to appeal from the decision of an appeal tribunal of the ACT Civil and Administrative Tribunal. The Tribunal is established by s 88 of the ACT Civil and Administrative Tribunal Act 2008. An appeal tribunal is defined in the dictionary to that Act as a tribunal made up under s 81 of the Act to review a decision of the tribunal. In this case, the original Tribunal decision was made on 15 March 2011 by Mr A Anforth, senior member. The appeal tribunal comprised Mr WG Stefaniak, Appeal President, and Mr CG Chenoweth. The appeal tribunal gave its decision on 11 July 2011, dismissing the appeal from Senior Member Anforth but varying the orders he had made.
Section 86 of the Act provides that a party to an application may appeal to this court on a question of fact or law from a decision of the appeal tribunal. However, the appeal may be brought only with this court’s leave.
Factual Background
The dispute between the parties relates to what was for decades a large block of land in Griffith with a house and garage on it. In recent years a second house was built on the block, and a swimming pool was put in behind it. During 2002 a units plan was registered, dividing the block into two with a house on each. The applicants are the crown lessees of block 1 and the first respondent is the crown lessee of block 2. The applicants bought their house in 2002. The first respondent bought hers in 2006. Until September 2009 she rented the house to tenants. Since then she has lived there herself, and relations between the neighbours have become increasingly acrimonious.
The block of land has a street frontage to its south and is bounded on the other three sides by other houses, with conventional paling dividing fences. The unit entitlements are 54% for unit 1 and 46% for unit 2, which I take to represent approximately the proportions of building area for each house. The houses have approximately equal street frontages but unit 1 has considerably more open space at the rear.
The garage for unit 2 is separate from and well behind the house, parallel to and 92 cm from the eastern fence line. The boundary between the two units has been drawn so as to leave a space of 20 cm behind the garage, and 25 cm beside it and parallel with it, from its western wall.
Prior to the subdivision, probably at the time of installation of the swimming pool, the rear area behind and adjoining the garage was built up with fill against the garage, up to about half the height of the garage walls. The garage is about sixty years old and is of concrete posts and panels. The evidence is that they are deteriorating due to age, weathering and the type of concrete used at the time of construction. The floor of the garage, and the internal walls on the western and northern sides, are discoloured due to moisture, whilst the floor and wall on the eastern side of the garage is dry.
In front of the garage, running generally north-south and parallel with the eastern fence, there is a retaining wall of railway sleepers with a fence above it, along the boundary line between the two units. It is not in dispute between the parties that this wall is in poor condition and needs at least repair if not replacement.
Proceedings in the Tribunal
The applicants filed an application in the Tribunal on 29 June 2010, seeking a range of orders. Of the six issues covered by the application, only one remains in issue so far as the present application is concerned. That was an order which sought:
4.That in respect of the current garage retaining wall and sleeper retaining wall (“the retaining walls”) in Unit 2 which provides support to Unit 1, the Respondent within ninety (90) days and at her own expense: -
(a) ensure that the retaining walls are in a good state of repair; and
(b) provide to the Owners Corporation a certificate from an engineer or licensed builder attesting that the retaining walls are in a good state of repair.
On 21 September 2010 the applicants filed an amended application. None of the amendments are relevant to the issues raised in this application.
The application was listed for hearing before Senior Member Anforth on 5 October 2010. The applicants appeared in person and the first respondent by telephone. The body corporate was also a party but did not engage in the hearing. Mr Anforth had a view of the premises. He noted that the garage retaining wall appeared to be severely affected by moisture and was crumbling. The comparison between the western wall and the opposite wall he described as stark. At the conclusion of the hearing Mr Anforth made orders which disposed of some of the issues raised in the application, and interim orders and directions as to other issues. Following the filing of written submissions on both sides, Mr Anforth made further orders and directions on 14 December 2010. The parties made further written submissions. The Tribunal had affidavit evidence from the first applicant, and other documentary evidence. It does not appear that there was any oral evidence, or that oral submissions were made in an open sitting of the Tribunal.
On 15 March 2011 Mr Anforth handed down his reasons for decision and made final orders. The orders, so far as they remain relevant to the issues before this court were:
1. The applicants are to take immediate steps to remove their soil from encroachment on the first respondent’s land.
2. The applicants are to cease using the first respondent’s garage wall and log wall as a retaining wall for the soil in the applicants’ back yard.
3. The applicants are to take immediate steps to:
(a)constrain their soil to their own property;
(b)construct an adequate means of retaining their soil retaining wall on their own property; and
(c)to provide such lateral support as is necessary for their back yard on their own land.
4. The applicants are to compensate the first respondent for the damage caused to the first respondent’s garage and log walls and the applicant’s encroachment.
5. [No longer relevant]
6. The matter is to be re-listed for further directions on the quantification of the compensation and the timing for compliance with the orders.
In his reasons for decision, Mr Anforth dealt with the issues, and exposed his reasoning process, at considerable length. The reasons ran to one hundred and two paragraphs over thirty-six pages. He made a finding of fact that the garage and log retaining wall, and also the swimming pool and garden on Unit 1 at the top of the retaining wall, pre-dated the subdivision of the property by over twenty years; and that the state of disrepair to the log retaining wall and the dampness to the garage pre-dated the purchase of Unit 2 by the first respondent. He further found as a fact that the damage to the garage walls had been caused by water seepage from the built-up soil abutting the exterior side of the wall, and made the same finding in relation to the log retaining wall.
He went on to say that it was obvious from visual inspection that the crumbling of the garage wall was caused entirely by dampness from the soil from the applicants’ back yard abutting the garage wall, and by water seeping into the garage wall from that soil. The use of the wall as a retaining wall was entirely for the benefit of the applicants, with no corresponding benefit for the first respondent.
He noted that the registered units plan did not note or authorise encroachment of soil from Unit 1 to Unit 2, or contain any covenant to the effect that the garage wall of Unit 2 was to form a retaining wall for the benefit of Unit 1. He concluded that no such encroachment was authorised by the registration of the units plan.
Mr Anforth analysed the position by reference to case law, some of which had been referred to in the written submissions of the applicants. He distinguished the decision of Austin J in Yared v Glenhurst Gardens Pty Ltd [2002] NSWSC 11. In that case, the properties of the plaintiff and defendant were separated by a stone retaining wall which formed the common boundary. The defendant raised the level of its higher property, installing parking areas and depositing soil on its own land against the retaining wall. During a period of heavy rain the soil retained water which undermined the integrity of the stone wall, which collapsed, spilling soil from the defendant’s land onto the plaintiff’s land. The plaintiff succeeded in establishing that the defendant had breached its duty to retain its own soil on its land adequately, whether in negligence, trespass or nuisance. The defendant failed in a cross-claim for the cost of repairs to the wall, his Honour finding that the plaintiff had no duty to provide the defendant with lateral support. Mr Anforth distinguished that decision on the basis that in Yared, the retaining wall was on the boundary between the two blocks of land, whereas in the application before him, the garage wall was entirely on the first respondent’s land, some short distance from the boundary. A further point of distinction was that in Yared, both parties obtained a benefit from the stone wall, whereas in the application before him the first respondent obtained no benefit from the encroachment or the use of her garage wall as a retaining wall.
Mr Anforth also referred to the decision of Young CJ in Eq in Owners Strata Plan 4085 v Mallone [2006] NSWSC 1381. That was a case where the plaintiff owned land at the bottom of a cliff and the defendant owned the land at the top of the cliff. Rocks fell from the defendant’s land onto the plaintiff’s land. The problem was caused by mining of the cliff face many years earlier and before the defendant became the owner of the high land. The defendant argued that the rock falls were not caused by anything he had done. The court held that this was no defence to a claim in nuisance, trespass, or negligence. The defendant had a duty to remedy the problem within a reasonable time of becoming aware of it.
Mr Anforth referred also to the decision of Preston CJ in Robson v Leischke [2008] NSWLEC 152, a case involving roots from a tree on the defendant’s property which caused damage to the adjoining property of the plaintiff. Preston CJ noted that it was irrelevant that the present landowner had not planted the tree. The duty of the owner was to take action to abate the nuisance to the adjoining land of the neighbour as soon as the owner became aware of the problem. A failure to take immediate action would deem the owner to continue, or perhaps adopt, the continuing tort.
Preston CJ quoted at [73] from Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 at [524] which explained the scope of the duty of a landowner to a neighbour as:
. . . a duty to do that which is reasonable in all the circumstances, and no more than what, if anything, is reasonable, to prevent or minimise the known risk of damage or injury to one’s neighbour or to his property. The considerations with which the law is familiar are all to be taken into account in deciding whether there has been a breach of duty, and, if so, what that breach is, and whether it is causative of the damage in respect of which the claim is made. Thus, there will fall to be considered the extent of the risk; what, so far as reasonably can be foreseen, are the chances that anything untoward will happen or that any damage will be caused? What is to be foreseen as to the possible extent of the damage if the risk becomes a reality? Is it practicable to prevent, or to minimise, the happening of any damage? If it is practicable, how simple or how difficult are the measures which could be taken, how much and how lengthy work do they involve, and what is the probable cost of such works? Was there sufficient time for preventive action to have been taken, by persons acting reasonably in relation to the known risk, between the time when it became known to, or should have been realised by, the defendant, and the time when the damage occurred? Factors such as these, so far as they apply in a particular case, fall to be weighed in deciding whether the defendant’s duty of care requires, or required, him to do anything, and, if so, what.
Mr Anforth noted that Robson v Leischke was ultimately determined under a particular NSW statute relating to trees which has no application in the present case. Mr Anforth nevertheless seems to have accepted it as correctly summarising the common law, as do I. He came to the view that it did not help the applicants, but rather assisted the counter-argument of the first respondent.
On the general question of the right of the owner of elevated land to lateral support from the lower land, Mr Anforth quoted from an earlier edition of Law of Torts, Balkin and Davis (LexisNexis Butterworths). In the most recent edition of that work (4th ed 2009) the question is dealt with at [14.18]:
It may also be a nuisance for the defendant to infringe a property right which the plaintiff has in respect of his or her land. The right with which most of the reported cases on nuisance are concerned is that of the support of the plaintiff’s land by the land of the defendant. Any removal of that support which causes the plaintiff’s land to subside is, at common law, a nuisance . . . however, the common law right is limited to the support of the land in its natural state and, so far as the law of nuisance is concerned, does not extend to land on which buildings are or will be erected.
I respectfully adopt that statement by the learned authors of the common law.
Mr Anforth noted that the land requiring support was not in its natural state. The soil against the garage was fill, representing an artificial and encroaching arrangement, and the first respondent owed no duty at common law to support it. Indeed, he was unable to identify any duty in tort on the first respondent to sustain the existing arrangements. To the contrary, the applicant’s soil and the water retention and seepage through that soil were encroaching on the land of the first respondent without lawful right and causing damage to her property. The applicants were in breach of a tortious duty. He went on to say that this was not a case where there was no reasonable solution open to the applicants. The solution was obvious and had been raised at the hearing. The applicants need only position their own retaining wall on their own land, properly drained. The first respondent had offered to permit access to her land for that purpose.
For those reasons Mr Anforth dismissed the application of the applicants, and upheld the cross-claim by the first respondent. He made the orders I have set out above.
The applicants did not accept the decision. On 11 April 2001 they filed an application for an internal appeal. The appeal tribunal comprised Mr Stefaniak and Mr Chenoweth. After a hearing where some further documentary evidence was admitted, not relevant to the issues I am asked to decide, the appeal tribunal dismissed the appeal for reasons given orally, but made some further orders having regard to some concessions made by one party or the other, some matters of agreement between them, and some changes which had apparently occurred since the decision of Senior Member Anforth. The orders made by the appeals tribunal were:
1. The appellants are to take immediate steps to remove their soil from encroachment on the first respondent’s land.
2. The appellants are to cease using the first respondent’s garage wall as a retaining wall for the soil in the application’s back yard.
3. The appellants are to take immediate steps to:
(a)constrain their soil to their own property;
(b)construct an adequate means of retaining their soil by retaining wall on their own property; and
(c)provide such lateral support as is necessary for their back yard on their own land.
(d)the log wall in the front of the garage, having been acknowledged to be on the common boundary, shall be repaired at the joint expense of the unitholders.
4. The appellants to compensate the first respondent for the damage caused to the side and rear walls of the first respondent’s garage adjacent to the appellant’s property.
5. Order number 2 of Senior Member Anforth’s orders of 14 December 2010 is to be complied with by close of business Thursday 1 September 2011.
6. Liberty is given to either party to apply to Senior Member Anforth for quantification of the compensation and the timing for compliance with the orders, should this be necessary.
7. The application for the appointment of an administrator of the body corporate is adjourned until 11 August 2001 at 11:30 and if this matter is resolved in the meantime the unit holders are to notify ACAT in writing.
The appeal tribunal dealt in its reasons with two other issues which had been raised on appeal but apparently not at first instance. One was a submission by the appellants that s 18(2) of the Unit Titles Act assisted their case. The appeal tribunal rejected that submission, and it has not been pursued in the draft notice of appeal to this court.
The other issue was as to the jurisdiction of the Tribunal where the amount at issue exceeded $10,000.00. The jurisdiction of the Tribunal in relation to civil disputes under part 4 of the ACT Civil and Administrative Tribunal Act is limited to that figure. Effectively, what was the small claims jurisdiction of the Magistrates Court has been removed from the court and conferred on the Tribunal. Part 4 has no application to applications to the Tribunal in the exercise of jurisdiction conferred by other legislation, such as, in the present case, the Unit Titles Act. The appeals tribunal correctly rejected the argument and it is not pursued in the proposed appeal to this court.
The application to this court
On 8 August 2011 the applicants filed an application for leave to appeal from orders 1, 2, 3 and 5 made by the Appeal Tribunal. The application was accompanied by a draft notice of appeal and supported by an affidavit by a solicitor with the firm now acting for the appellants. The grounds set out in the draft Notice of Appeal include assertions of errors in findings of fact by the Tribunal, and errors of law relating to encroachment and nuisance. At the same time, the applicants filed an application in proceeding seeking a stay of the orders of the Tribunal until the application for leave and, if relevant, the appeal itself, had been determined. The applicants joined as parties to the application in this court the owners corporation of the units plan (the body corporate) and the Tribunal. Rule 5102 of the Court Procedures Rules 2006 provides that on an appeal to this court from an order of a Tribunal other than the ACT Civil and Administrative Tribunal, the Tribunal must be included as a respondent to the appeal. I have not been taken to, nor have my admittedly superficial researches identified, any legislative requirement that the Tribunal be joined as a respondent to an application for leave to appeal or an appeal to this court. The Tribunal has filed a submitting appearance. The body corporate has not participated in the proceedings in this court at all. By the time the application came on for hearing before me on 7 October 2011, both the applicants and the first respondent were represented by solicitors and counsel.
Appeals by leave - principles
I was taken by counsel to a passage from a decision of mine in which I refused an application for leave to appeal from the Tribunal, Lucas v Commissioner for Social Housingfor the ACT [2011] ACTSC 11 where I said:
[24] There is little authority as to the principles to be applied in considering an application for leave to appeal from the Tribunal. The issue arose in Classic Constructions (Aust) Pty Ltd v Conservator of Flora and Fauna [2005] ACTSC 103, an application for leave to appeal to this court from the Administrative Appeals Tribunal, a predecessor of the present Tribunal . . . I noted the parallel to appeals from an interlocutory order made by a single judge, which in most jurisdictions lie only by leave. I referred to the guidelines formulated by the Full Court of the Supreme Court of Victoria in Niemann v Electronic Industries Ltd [1978] VR 431. It has since been doubted whether the court in that decision intended to lay down guidelines at all: see for example Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 . More recently the principles were set out in some detail by Refshauge J in Capital Property Projects (ACT) Pty Ltd v Australian Capital Territory Planning & Land Authority (2008) 2 ACTLR 44. However, the principles governing the grant of leave to appeal from an interlocutory decision are not necessarily fully applicable to an application for leave to appeal from the Tribunal. Decisions of the Tribunal will frequently have determined substantive rights between the parties. I noted in Classic Constructions that the Administrative Appeals Tribunal had in common with the then Small Claims Court the characteristic that many matters coming before it involved self-represented parties. It could be assumed that often the losing party would have an understandable sense of grievance and might be less than entirely objective about the prospects of an appeal succeeding. This suggested that the legislature saw the requirement for leave as a useful filter to relieve the court and the parties of the time and expense which might be lost if an appeal with minimal prospects were able to brought without leave. I noted the dicta of McGarvie J in McKenna v McKenna [1984] VR 665, in which his Honour warned of the danger of developing a formula from earlier decisions as to the exercise of a judicial discretion, and the importance of retaining the flexibility which the law conferred on the judge called upon to exercise the discretion.
[25] One of the principles which Refshauge J listed as applicable to an application for leave to appeal from an interlocutory decision was that generally the applicant bears the onus of satisfying the court that the decision sought to be appealed from is attended with sufficient doubt to warrant reconsideration on appeal and that substantial injustice would result if leave to appeal were refused.
Williams J, in a passage approved in Niemann at [437-438], said in Perry v Smith (1901) 27 VLR 66 at [68], in relation to appeals from interlocutory orders:
Parliament evidently desired to cut down these appeals from interlocutory orders as much as possible, and with that object, have made this provision – that a person who is dissatisfied with an interlocutory order of this description, if leave is refused by the judge who has made the order, shall only appeal provided he can obtain special leave from the Full Court . . . We think that the object which Parliament had should be recognised by this court in a liberal manner, and not begrudgingly. The cases cited to us seem to show that the onus lies on the party who applies for that leave to satisfy the Court of Appeal that the decision of the primary judge was wrong, and in addition to that he has to satisfy the Court that substantial injustice will be done by leaving that erroneous decision unreversed.
It must be recognised that his Honour was speaking of appeals from interlocutory orders and not from orders which finally disposed of proceedings and determined substantive rights between parties. In relation to appeals from decisions in the latter category, Jordan CJ said in Re the Will of FB Gilbert (Deceased) (1946) 46 SR (NSW) 318 at [323]:
. . . I am of opinion that . . . there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse of a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in chambers to a Court of Appeal. But an appeal from an exercise of a so-called discretion which is determinative of legal rights stands in a somewhat different position. In this class of case, too, a Court of Appeal submits itself to self-imposed restraints, but restraints which, though strict, are somewhat less stringent than those adopted in matters of practice or procedure.
A relevant consideration, in addition, will be whether the issues to be raised on the proposed appeal are of public importance: Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 4) (1998) 86 FCR 399. As Refshauge J said in Capital Property Projects at [36], this test has elements of the well-known test in the High Court considering special leave to appeal, that leave should be granted where the issues in the appeal would “. . . raise a matter of general importance”: Fredericks v May (1973) 47 ALJR 362 at [364]. Another factor which will often militate in favour of a grant of leave is that the law is unclear by reason of conflicting authorities on the point involved in the decision: Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317 at [325, 349].
Although the decision from which leave is sought to appeal is a final and not an interlocutory one, I must take into account that this will usually if not always be the case where leave is sought to appeal from a decision of the Tribunal. Nevertheless the legislature has seen fit to provide that an appeal from a decision of the Tribunal lies only by leave of this court. In most cases, as in the present case, the original decision will already have been the subject of internal review within the Tribunal. It is the clear intention of the legislature that appeals to this court from the Tribunal be the exception rather than the rule, notwithstanding that most such decisions will be final and will have determined substantive rights. It may be helpful to consider some of the provisions of the ACT Civil and Administrative Tribunal Act in determining the manner in which the discretion to grant or refuse leave should be exercised.
Section 6 sets out the objects of the Act. These include:
(a) to provide for a wide range of matters arising under legislation to be resolved by the Tribunal; and
(b) to ensure that access to the Tribunal is simple and inexpensive, for all people who need to deal with the Tribunal; and
(c) to ensure that applications to the Tribunal are resolved as quickly as is consistent with achieving justice; and
(d) to ensure that decisions of the Tribunal are fair.
Section 7 requires the Tribunal to ensure that its procedures are as simple, quick, inexpensive and informal as is consistent with achieving justice. Section 8 provides that the Tribunal need not comply with the rules of evidence.
Part 4 of the Act gives the Tribunal jurisdiction over claims for $10,000.00 or less, including claims for debt and claims in contract, negligence, nuisance, and trespass.
Section 23 empowers the Tribunal to decide its own procedure in relation to a particular matter. Section 26 permits the Tribunal to inform itself in any way it considers appropriate, for example by obtaining expert advice from an assessor, or by relying on previous experience in relation to the matter.
The general rule is that parties in the Tribunal are to bear their own costs: s 48.
An application before the Tribunal may be heard and determined by a member who need not have any legal qualifications. However, an Appeal Tribunal undertaking an internal review must include a presidential member, who is required to be a lawyer of some experience.
Section 88 of the Act provides that the Tribunal is to have four divisions (administrative review; civil disputes; occupational discipline; and general) and may establish others. Its range of work is extraordinarily varied, from minor disputes between individuals over a few hundred dollars to multi-million dollar planning and revenue disputes.
It seems to me inevitable that one of the factors which must be taken into account by this court in considering an application for leave to appeal from the Tribunal is whether an appeal can be justified in the light of the importance of the dispute, and in particular the amount at issue. This is of course but one factor, to be weighed in the balance against other factors such as whether it can be seen that the Tribunal made a mistake of law which in the interests of justice must be corrected, or whether the Tribunal arrived at findings of fact which were patently not open to it on the material before it.
It can reasonably be said that the court may take a different view about a prospective appeal from the Tribunal where both parties, or all parties, were represented by counsel before the Tribunal and where the amount at issue is substantial. This will extend to decisions of the Tribunal where, although the decision itself may not make reference to a particular money amount, it is apparent that the effect of the decision may have a significant financial impact on one of more of the parties. An example might be a decision about planning approval for an office block or multi-apartment residential development.
The present application falls somewhere in the middle, but towards the lower end in financial terms. The potential financial impact of the decision of the Tribunal on the parties takes it somewhat above the limit of the civil claims jurisdiction of the Tribunal. At the same time, it remains within an area of monetary impact where one can see that the costs of an appeal to this court, if leave is granted, might easily become disproportionate to the notional amount in issue between the parties.
It is not suggested that the present dispute requires the determination of questions of law which are in doubt, for example by reasons of conflicting decisions of courts in different Australian jurisdictions. On the contrary, it seems to me that generally Senior Member Anforth’s analysis of the law to be applied to the dispute was correct.
This is not a case where the Tribunal can be seen to have arrived at findings of fact which were incorrect, or not available to it on the materials before it.
The decision cannot be characterised as one which calls for a decision of this court because of a need for a ruling on a problem which commonly recurs in the Territory where there is any confusion about the applicable law or the relief to be granted.
In the affidavit by the first applicant asking for a stay of the orders of the Tribunal pending the determination of the application for leave to appeal, a number of practical issues were raised as to compliance by the applicants with the orders of the Tribunal. In the first instance I observe that generally the orders made by Senior Member Anforth with a view to having the nuisance removed by the applicants were consistent with a report obtained by the applicants in December 2009 from Northrop Engineers. There is no suggestion that the applicants saw any practical difficulties at that time with those proposals. Additionally, it should be recalled that the Appeal Tribunal gave the parties liberty to apply to Senior Member Anforth to resolve any practical difficulties which might arise in implementing the orders of the Tribunal.
Conclusion
I am not persuaded that this is a decision of the Tribunal from which leave to appeal should be granted.
Factors which influence me in coming to that conclusion include:
a) the fact that this is a dispute between neighbours, who should be encouraged to resolve their differences amicably because they will continue to be neighbours regardless of the outcome.
b) the relatively modest amount at issue: that is to say, the amount which a decision in favour of either the applicants or the first respondent is likely to cost the unsuccessful party.
c) that there is no grey area of the applicable law which needs to be resolved in the interests of the wider community.
d) that no obvious error was made by the Tribunal, either at first instance or on internal review, as to findings of fact or as to the applicable law.
e) that generally unrepresented individuals ought to be able to approach the Tribunal in the confidence that their disagreements will be resolved in a practical fashion, without either side being exposed to the potential cost of legal representation which is at least desirable, though of course not mandatory, on appeal to this court.
In this matter, the applicants instructed solicitors and counsel to appear on the hearing of the application. The first respondent, understandably and appropriately, engaged solicitors and counsel to oppose it. It should be understood that although the general rule before the Tribunal is that there will be no order as to costs, the position is otherwise in this court. A party who brings proceedings in this court, including an application for leave to appeal from the Tribunal, is thereby exposed to the risk of an order for costs if unsuccessful.
The application for leave to appeal will be dismissed with costs. There is no occasion for an order for costs in favour of the second respondent, which did not appear, or the third respondent which appeared and submitted other than as to costs, but did not do so through solicitors.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master Harper.
Associate:
Date: 10 February 2012
Counsel for the applicants: Mr WL Sharwood
Solicitor for the applicant: Williams Love & Nicol
Counsel for the respondent: Mr RP Clynes
Solicitor for the respondent: Elringtons
Date of hearing: 7 October 2011
Date of judgment: 10 February 2012
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