Cooper v O'Connor

Cooper sought leave to appeal from the decisions of the Civil and Administrative Tribunal of New South Wales, which found against him in a dispute over the boundaries of land and the construction of a fence. The respondent, O'Connor, held his property in joint names with his deceased wife. Cooper argued that the notice to contribute for fencing work was invalid and that the tribunal did not have jurisdiction to make the orders it did. He also argued that the tribunal had incorrectly joined his deceased co-owner as a party. The tribunal had found that Cooper had not engaged in the proceedings and had filed his application for leave to appeal out of time, without explanation. O'Connor argued that the appeal should be dismissed and that he should be awarded costs for Cooper's delay.

The court considered whether Cooper had demonstrated that the tribunal had made an error of law and that there were grounds for leave to appeal. It found that Cooper had not demonstrated that the notice to contribute was invalid or that it amounted to an agreement to fence. The court also found that the tribunal had not erred in law in joining the deceased co-owner as a party. However, the court found that the tribunal had erred in law in making the orders it did, as Cooper had not engaged in the proceedings and had filed his application for leave to appeal out of time, without explanation. The court found that the tribunal should be entitled to costs for Cooper's delay.

The court allowed the appeal and set aside the decisions of the tribunal. It dismissed Cooper's application for minor civil dispute – dividing fences and ordered that he pay O'Connor's costs of and incidental to the appeal. The court ordered that the parties file and serve submissions as to the appropriate Scale for assessing costs and that the tribunal decide the question of costs based on the parties' submissions and without the parties appearing at a hearing. The court granted leave to appeal and allowed the appeal.