Just v Wu

[2023] NSWCATEN 1

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Just v Wu [2023] NSWCATEN 1

Hearing dates:

31 January 2023

Date of orders:

31 March 2023

Decision date:

31 March 2023

Jurisdiction:

Enforcement

Before:

Coleman SC ADCJ, Principal Member

Decision:

(1) The application to refer the Respondent to the Supreme Court for contempt is refused.

(2) The application for a vexatious proceedings order against the Respondent is refused.

(3) Within 28 days, each party file and serve a document setting out with precision the orders sought by that party to give effect to the orders of the Tribunal of 26 November 2020, together with the lay and expert evidence in affidavit form upon which the party relies.

(4) Neither party is to file an affidavit exceeding 10 pages in length (exclusive of annexures) without the leave of the Tribunal.

(5) Grant leave to the parties to be legally represented.

(6) A party seeking an order for costs of these proceedings file and serve written submissions in support of such application not exceeding 5 pages in length within 28 days.

(7) A party resisting a costs application file and serve written submissions in opposition to such order not exceeding 5 pages in length within 28 days.

(8) A party opposing an order pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) dispensing with a hearing of any costs application include submissions in support of such opposition in any submissions filed pursuant to order 6 or 7 of these orders.

Catchwords:

PRACTICE AND PROCEDURE- contempt- application for referral to Supreme Court under s 73(5) of the Civil and Administrative Tribunal Act 2013 (NSW)- whether conduct of Respondent capable of constituting contempt of the Tribunal- whether Tribunal has jurisdiction to declare Respondent vexatious litigant- whether Tribunal should attempt to determine outstanding issues with respect to orders for erection of dividing fence

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Dividing Fences Act 1991 (NSW)

Evidence Act 1995 (NSW)

Vexatious Proceedings Act 2008 (NSW)

Cases Cited:

Attorney General v Wilson [2010] NSWSC 1068

Australian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 97

Brogden v Attorney General [2001] NZCA 208

Burns v Corbett [2015] NSWCATAD 188

Cachia v Hanes [1994] HCA 14; 179 CLR 403

DVI v ZTT [2021] NSWCATEN 4

Falletta v Cook [2008] NSWSC 431

Mohareb v Palmer [2017] NSWCA 281

Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398

Singh v The Owners Strata Plan 11723 [2013] NSWSC 1595

Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141

Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525

Category:

Principal judgment

Parties:

Allan Francis Just (Appellant)
Yijing Walter Wu (Respondent)

Representation:

Solicitors:
Appellant (Self-represented)
R Johnson (Respondent)

File Number(s):

PC 22/13182

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. By application filed 24 March 2021 Alan Francis Just (Applicant) sought orders that Yi Jing Walter Wu (Respondent) be “found in contempt” of orders made by the Tribunal on 26 November 2020 in proceedings between the Applicant and the Respondent instituted by the Applicant pursuant to the provisions of the Dividing Fences Act 1991 (NSW). The Applicant also sought an order that the Respondent “be declared a vexatious person and he be barred from making any applications to this Tribunal or any other jurisdictions, including the Supreme Court, in this or any other matters that may include me”.

2. The Respondent resisted the Applicant’s application.

3. The application was heard by the Tribunal on 31 January 2023, at which time the Respondent was represented. Prior to the hearing, on the numerous occasions when the matter was before the Tribunal for directions, the Applicant was unrepresented.

Events following the hearing

4. On 8 February 2023 the Applicant emailed the Registry and raised a number of procedural aspects with respect to the hearing of his application on 31 January 2023.

5. The Applicant recorded his “expectation” that the Respondent would be self-represented at the hearing, and stated that he was “caught very much by surprise when at the start of the hearing” a solicitor was introduced as representing the Respondent. The Applicant asserted that this “unwelcome surprise caused me to become flustered, uncertain and not as coherent as I would normally be”, and that he felt “intimidated” by the solicitor’s presence, and “worried I was at an unfair disadvantage”. The Applicant further asserted that he found himself “unable to say what I needed to say in the manner I wanted using the methodology I had prepared”.

6. The Applicant stated that he had “no record of ever having been informed the Respondent had approached the Court and asked to be allowed to be represented, or of the Court agreeing to the Respondent being represented”. The Applicant alleged that the Respondent “should have informed me of the approach and without doing so the Respondent should not have been represented”.

7. The Applicant submitted that the “failure to inform me not only caused the significant negative issues on the day of the hearing, it took away my opportunity to be on an even footing by also approaching the Court and asking to be represented”. For those reasons, the Applicant sought that the hearing on 31 January 2023 be declared “null and void”. In the alternative, the Applicant sought that the matter be “rescheduled to an alternative date for which I can prepare in the knowledge the Respondent will be represented, and so I can decide if I also want to seek the Court’s approval to be represented”.

8. Section 45(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) provides that a party “has the carriage of the party’s own case and is not entitled to be represented by any person” but, (s 45(1)(b)), “may be represented by another person only if the Tribunal grants leave” for, in the present circumstances, an Australian legal practitioner to represent the party.

9. The Tribunal has no recollection of an application on behalf of the Respondent for leave to be legally represented. Nor, unsurprisingly, does it have any recollection of the Applicant being invited to make submissions in opposition to that course.

10. The Tribunal is not persuaded that the proceedings on 31 January 2023 were “null and void”, or that the hearing of the Applicant’s referral application should be “reopened”. Notwithstanding the terms of s 45 of the CAT Act, the Tribunal is not aware of any statutory provision or authority which establishes that the failure to comply with the section renders proceedings null and void. The failure to comply with the section may be relevant to a complaint on appeal based on an asserted denial of procedural fairness.

11. Had the question of leave been raised, and the Applicant objected, either on the grounds advanced by him on 8 February 2023, or other grounds, the Tribunal would have granted leave for the Respondent to be legally represented. The fact that the proceedings commenced by the Applicant sought the referral of the Respondent to the Supreme Court to be dealt with for contempt of the Tribunal which, if successful, could place the Respondent’s liberty at risk, would of itself have been a compelling reason why the Respondent should be granted leave to be legally represented.

12. On a number of interlocutory hearings prior to 31 January 2023 the nature of the Applicant’s application, and the matters which he needed to establish were explained to him by the Tribunal. At no time prior to the hearing did either party express an intention to obtain, or need, legal representation. The Applicant did not suggest in his email of 8 February 2023 that he sought the reopening of the proceedings in order that he may be represented, but so that he may have the opportunity to “decide if I also want to seek the Court’s approval to be represented”.

13. Although the Tribunal is not aware of any legal requirement that the Respondent forewarn the Applicant of his intention to be legally represented at the hearing on 31 January 2023, and although he did not appear to be constrained in the ways suggested in the email of 8 February 2023, the Tribunal accepts that the Applicant may have been “blindsided” in the ways he alleged by the appearance of a lawyer representing the Respondent at the hearing.

14. In the circumstances, the Tribunal considered that it was in the interests of justice to provide a “level playing field” by affording the Applicant the opportunity to have a lawyer make further submissions on his behalf, or provide further submissions prepared with the assistance of a lawyer. In response to the Tribunal inviting the Applicant to indicate whether he wished to file such further submissions, the Applicant filed submissions which did not fall within the ambit of the leave granted to him. The Tribunal has read but not considered those submissions, or the further submissions of the Respondent which appear to have been written by the Respondent without legal input.

15. Neither party’s case has been adversely affected by not considering his lengthy and repetitive submissions, filed without leave, which were not served on the opposing party, and ultimately serve only to reinforce the Tribunal’s decision with respect to the third issue with which these reasons engage- which is how the unresolved fencing dispute should be determined on its merits.

16. On 22 March 2023, and in accordance with the time stipulated in the Tribunal’s directions, the Applicant filed an affidavit sworn that day (the affidavit). The Tribunal has not invited the Respondent to reply to the affidavit. The Tribunal’s consideration of the affidavit later in these reasons reveals why it did not afford the Respondent procedural fairness with respect to the affidavit (Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141).

Background

17. The Applicant’s application identified four orders of the Tribunal which he submitted that the Respondent had breached in circumstances enlivening the discretion to refer his contempt application to the Supreme Court and/or, if the Tribunal had jurisdiction to do so, declaring that the Respondent was a vexatious litigant.

18. The substantive orders which gave rise to the current proceedings were made by the Tribunal by consent on 26 November 2020 and provided:

1. The Applicant is to engage a qualified fencing contractor to supply and install a paling fence in accordance with the quote obtained by the Applicant from Waikiwi Fencing for $2,889 plus delivery of $90 plus core drilling tests, plus GST dated 2 July 2020.

2. The new fence is to be:

1. positioned on the common boundary between the adjoining lands at address 1 Hornsby NSW 2077 and address 2 Hornsby NSW 2077 for a length of approximately 32 metres;

2. at a height of 1.8 metres for 9.5 metres;

3. at a height of 1.2 metres for 22.5 metres;

4. supported by steel posts, core drilled where necessary and concreted in with posts and rails on the Applicant’s side and palings on the Respondent’s side (to match existing).

3. Prior to the fence being constructed each party is to clear their respective sides of the common boundary by 1 metre, by 26 December 2020.

4. The Applicant must pay the cost of the fencing work to the fencing contractor and will be the only person to give instructions to the fencing contractor in relation to the fencing work.

5. The Respondent’s contribution to the cost of the fencing work is 50% of the cost of supplying and erecting the fence.

6. Subject to the availability of the fencing contractor, the fencing work is to be completed within 2 months from today.

7. The parties have liberty to apply for an extension of time if the period of 2 months is inadequate to allow the fencing work to be carried out.

8. The fencing work is to be completed in a good and workmanlike manner using new materials.

9. The fencing contractor is to be paid by the Applicant on the day the fencing work is completed.

10. The Respondent is to pay the Applicant their 50% contribution, as ordered in these orders within 7 days of completion of the fencing work.

19. On 27 November 2020 pursuant to s 63 of the CAT Act, by consent, order 10 of the orders of 26 November 2020 was amended to provide that the Respondent was to pay the Applicant “his” 50% contribution, in accordance with the orders of the previous day.

20. On 15 February 2021 the Tribunal ordered that the parties comply with order 3 made on 26 November 2020, to ensure that all vegetation within 1 metre of the common boundary was cleared to ground level sufficient to allow the fencing contractor proper access. The Tribunal further ordered that either party could seek leave to “renew these proceedings in the event that these orders are not complied with”.

21. On 16 February 2021 the orders of the previous day were amended to provide that the work referred to in those orders be completed on or before 1 March 2021.

22. On 13 January 2022 the Tribunal granted the Applicant leave to renew the proceedings and directed that, on or before 31 January 2021, (obviously intended to be 2022), the order for clearance of vegetation (order 3) was to be complied with. The Respondent was ordered to pay the Applicant costs in the sum of $104.42. The Applicant’s application was otherwise dismissed.

23. In its Reasons for Decision of 13 January 2022, the Tribunal referred to the orders of 26 November 2020 and 15 February 2021. The Tribunal recorded that the Applicant sought an order that he be permitted to “clear the Respondent’s land” and a further order that the Respondent pay him $8,800 for that work. The Tribunal was not satisfied that it had jurisdiction to make such orders. There was accordingly “no point” in permitting the Applicant’s application to proceed beyond the directions hearing.

24. The Tribunal also recorded that the Applicant sought an order for $880 for his time “caused by the conduct of the Respondent which has necessitated this application”. In reliance upon the decision of the High Court in Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403, the Tribunal rejected that application. The Tribunal thus recorded that it only remained to consider the Applicant’s claim for costs of $104.42, being two filing fees of $52.21 which were incurred in commencing the renewal application on 8 January 2021 (which resulted in the orders of 15 and 16 February 2021), and the alleged non-compliance with those orders, which gave rise to the application which the Tribunal determined on 13 January 2022.

25. The Tribunal referred to the competing contentions with respect to the non-completion of the clearing work, it not being in issue that the work had not been completed by January 2022. The Tribunal found that there was “no satisfactory explanation (from the Respondent) as to why the work had not been completed by either the Respondent, his son, or by someone engaged by the Respondent to do that work for him”. For the other reasons which it also recorded, the Tribunal ordered that the Respondent pay the two filing fees which the Applicant had incurred.

26. The Tribunal declined to make another renewal order, but granted leave to make the renewal application which it determined on 13 January 2022. The Tribunal reiterated that the Applicant had been unsuccessful in his application for an order “to be able to clear the Respondent’s land”, for the payment of $8,800 for that work and the payment of $880 for his time.

27. Neither party appealed against any orders made by the Tribunal on 13 January 2022.

28. It is common ground that the fence which the parties agreed in November 2020 would be constructed has not been constructed. Each party attributes sole or primary blame for that state of affairs to the other party. Some indication of the antipathy between the parties can be gleaned from the fact that, on a complaint by the Respondent, on 3 December 2022 NSW Police apparently charged the Applicant with assault. The Applicant was due to face the Local Court at Hornsby in relation to that charge on 14 February 2023. There are also apparently pending proceedings, presumably in the Local Court, for Apprehended Domestic Violence Orders. It is not clear, and not relevant for present purposes in any event, which of the parties, or both of them, is/are seeking such relief. The Tribunal has not taken into consideration anything asserted by either party in emails to the Tribunal after the hearing with respect to the Local Court proceedings.

Orders sought by the Applicant

29. At the last Directions Hearing, on 22 October 2022, when the proceedings were fixed for hearing, the Tribunal clarified with the parties which of the 34 orders sought by the Applicant in his referral application continued to be sought. At the commencement of the hearing on 31 January 2023 the Tribunal inquired whether its record of the orders which had been abandoned was, and remained, accurate from the Applicant’s perspective. The Applicant confirmed that it was.

30. It was acknowledged at the Directions Hearing in October that, sometime between 13 January 2022 and 21 October 2022 the Respondent had paid the costs awarded against him on 13 January 2022. The Applicant accepted, sensibly in the Tribunal’s view, that, in those circumstances, and having regard to the principles governing the referral application, it would not be appropriate to refer any contempt application to the Supreme Court in reliance upon the Respondent’s previous non-compliance with the order for costs.

31. The Applicant also confirmed that, between 31 January 2022 and 21 October 2022 the Respondent had complied with order 3 of the Tribunal of 26 November 2020, which obliged each party to ensure that all vegetation within one metre of the common boundary was cleared to ground level sufficient to allow the fencing contractor proper access. The Applicant, again sensibly in the Tribunal’s view, acknowledged that, in those circumstances, it would not be appropriate to refer his contempt application to the Supreme Court in reliance upon that alleged breach.

32. The Applicant further acknowledged that his complaint with respect to the removal of a camphor laurel tree stump had dissolved by reason of the Respondent having taken steps to have the offending stump removed.

33. The Applicant also confirmed that his complaint with respect to the Respondent’s alleged failure to clear a “decrepit trellis type structure that is built on the boundary line and prevents the construction of the new fence” had dissolved by reason of the Respondent’s removal of it at some time prior to 21 October 2022.

34. The Applicant confirmed that the Respondent’s alleged “storing large palm fronds that have fallen from trees located on his side of the boundary in an area immediately adjacent to the boundary line within one metre of the boundary line” was no longer an issue as the Respondent had caused that vegetation to be removed.

35. The Applicant conceded that, in the present circumstances, in view of the matters recorded above, the Tribunal would not find it appropriate to refer his contempt application to the Supreme Court. The Tribunal had, at the first Directions Hearing on 12 April 2022, directed the parties to relevant decisions of the Tribunal with respect to the Applicant’s referral application. The Tribunal again explained to the parties, and particularly to the unrepresented Applicant, the principles governing the referral application at the hearing on 31 January 2023. The Applicant continued to press his application for an order declaring the Respondent vexatious.

36. On 21 October 2022, in the hope that, if the referral and vexatious litigant applications were both unsuccessful, the parties might be spared further litigation and, hopefully, at long last have the agreed fence constructed, the Tribunal indicated that it would be receptive to attempting to determine outstanding “fencing issues” on 31 January 2023. At the hearing, the Applicant urged the Tribunal to make a variety of orders with respect to the fencing issue if his contempt and/or vexatious litigant applications failed. Counsel for the Respondent, for the reasons which he advanced, submitted that the preferable course in the event that the referral and vexatious litigant applications failed, was to grant leave to both parties to renew the fencing proceedings, and make directions for that to occur before a Member of the Tribunal at first instance.

29. There are accordingly three matters requiring determination:

1. The Applicant’s referral application.

2. The Applicant’s vexatious litigant application.

3. Consideration of the fencing issue if the referral and vexatious litigant applications are refused.

The referral application

38. Although it might be strictly unnecessary to do so in view of the concessions made by the Applicant with respect to the referral application, as he has been unrepresented throughout the proceedings, and, as will be seen, the affidavit filed after the hearing pursuant to the leave discussed above did not engage with it, the Tribunal has considered whether the Applicant’s application may nevertheless have merit.

39. The Applicant’s referral application was made pursuant to s 73(5) of the CAT Act in reliance upon the Respondent’s alleged breaches of orders of the Tribunal. The principles governing the application are not in doubt and were extensively reviewed by Armstrong J in DVI v ZTT [2021] NSWCATEN 4.

40. As was explained to the Applicant at the hearing, and at earlier directions hearings, the Tribunal was not hearing a contempt application against the Respondent but rather determining whether the conduct of the Respondent complained of by the Applicant was “capable” of amounting to contempt of the Tribunal and thus appropriate to be referred to the Supreme Court (Mohareb v Palmer [2017] NSWCA 281). The Respondent was entitled to, and did, resist the Applicant’s application. As was explained to the Respondent prior to his engaging legal representation, the Respondent was entitled to the right to silence. The Respondent did not exercise that right. Both parties filed numerous lengthy affidavits with respect to the many and varied aspects of their neighbourhood dispute, many of which do not assume relevance in the context of the Applicant’s referral or vexatious litigant applications.

41. As the Applicant accepted, the power to refer a contempt application to the Supreme Court is discretionary and underlined by the consideration that the power to punish for contempt is appropriately invoked “sparingly and only in serious cases” (DVI at [9]). Although the parties’ dispute is “serious” for them personally, that does not mean that it is serious in the sense which is relevant for present purposes.

42. In considering whether to refer a contempt application based upon alleged breaches of Tribunal orders, the Tribunal considers whether there were alternate means of enforcing the Tribunal’s orders and, in the exercise of discretion, takes into account those alternatives when they are available, and whether any of the alternatives has already been invoked (Burns v Corbett [2015] NSWCATAD 188 at [93]).

43. The Applicant has previously “renewed” the substantive proceedings. There does not appear to be any impediment to either party revisiting the orders of 26 November 2020 by way of ancillary application “consequential on, a decision determining proceedings” (s 4 CAT Act). Section 13(1) of the Dividing Fences Act 1991 (NSW) (“Fencing Act”) invests the Tribunal with jurisdiction to “hear and determine any matter arising under” the Act. The provisions of the Fencing Act do not appear to create any bar to a party to an existing fencing order applying to the Tribunal to vary or enforce such order. A number of the provisions of the Fencing Act envisage such applications.

44. Irrespective of whether he could again do so, and particularly in view of their terms, the Applicant has for some time been able to enforce the orders of the Tribunal in reliance upon the provisions of the Fencing Act without the co-operation of the Respondent. Brereton J confirmed in Falletta v Cook [2008] NSWSC 431, that s 15 of the Act provides that if an order is made by the Local Court, and an adjoining owner bound by the order fails within the specified time to comply with the order, the other adjoining owner may carry out the necessary fencing work as determined by the order and recover from the defaulting adjoining owner the amount ordered to be paid by that owner.

45. Section 15(2) of the Fencing Act provides that the “specified time” is the time specified in the order, or if no time is specified, within 3 months after the making of the order. As the terms of s 13 of the Fencing Act makes clear, that is also the case with respect to orders made by the Tribunal under the Fencing Act. The terms of the orders of 26 November 2020 fell within the ambit of s 15 of the Fencing Act. Pursuant to those orders, the Applicant could have proceeded to have the dividing fence constructed as the orders provided, and recovered half the cost of doing so from the Respondent.

46. Section 24(1) of the Fencing Act provides that any money which an adjoining owner is liable to pay under the Act “may be recovered as a debt in a court of competent jurisdiction”. The legislative scheme created by s 24 of the Fencing Act enabled the Applicant to achieve the objectives of the 26 November 2020 orders in the face of any failure of the Respondent to comply with them, and, if the cost of doing so had increased since the date of the orders, to recover any such increase which is held to be attributable to the conduct of the Respondent.

47. It is thus apparent that, for some time, there have been remedies available to the Applicant of which he has never sought to avail himself. Nothing to which the Tribunal has been referred, or found for itself suggests that the Applicant is now unable to seek those remedies. The Applicant, who has represented himself at all material times, is presumably unaware of these provisions, but that does not advance his referral application.

48. Having regard to the Applicant’s complaints, had he sought relief pursuant to s 15 of the Fencing Act, and done so in a timely manner, he may well have achieved the objectives of the orders of 26 November 2020, and done so much sooner, and at much less cost than the evidence suggests may now be likely to be involved in having the work done. Were it necessary, this would militate conclusively against granting the referral application.

49. The authorities recognise two purposes in referring an alleged contempt based on failing to comply with orders of the Tribunal to the Supreme Court. They are to secure enforcement of the orders for the benefit of the party entitled to that benefit, and to protect the effective administration of justice by demonstrating that orders of the Tribunal will be enforced (Australasian Meat Industry Employees Union v Mudginberri Station Pty Limited [1986] HCA 46 (1986) 161 CLR 97; Witham v Holloway [1995] HCA 3 (1995) 183 CLR 525).

50. Albeit belatedly, and in circumstances which are disputed, the Applicant conceded that the Respondent has complied with each of the orders on which his referral application was reliant. As was suggested to the Applicant during the hearing, it can be fairly suggested that he has achieved one of the recognised purposes of a referral application - at least the parts of the orders about which he complained have been complied with. Whatever the reasons for his prior non-compliance, the Respondent complied with the orders of the Tribunal after the Applicant made his referral application. It can be reasonably inferred that so doing involved the Respondent’s recognition that orders of the Tribunal would be enforced. As recorded above, the provisions of the Fencing Act enable the Applicant to secure compliance with the remaining orders of 26 November 2020: it is only a matter of deciding which of the available remedies the Applicant chooses to pursue.

51. In DVI, at [11], the Tribunal identified the common law requirements for a successful prosecution for contempt for breach of court to include “the obligation imposed by the order being sufficiently clear to support enforcement of the order against the alleged contemnor”, and that the conduct of the alleged contemnor amounted to a wilful, as opposed to a “casual accidental or unintentional” failure to comply with the order.

52. As is not in doubt, and is one of the few matters on which the parties agree, in July 2022, after a period of exceptionally heavy rain, a retaining wall under a concrete slab on the Respondent’s property, part of which is on the boundary between the parties’ properties, collapsed. The parties disagree as to who was to blame, or primarily to blame for that occurring. In reliance upon planning instruments provided to him by the local council, the Respondent contends that he may need to obtain, and comply with the conditions of a development application to be able to lawfully rebuild the retaining wall. The Applicant asserts that the Respondent does require a development application with respect to a retaining wall on the common boundary, but disputes that it relates to the area in which the concrete slab is located.

53. If not before, at least since July 2022, when the wall collapsed, it would be difficult, even on the civil standard of proof, to establish that the Respondent’s failure to proceed with the construction of the fence in accordance with the orders of 26 November 2020 was wilful in those circumstances. It is also difficult to accept that, in view of the unforeseen collapse of the retaining wall, although clear at the time, the obligation imposed on the Respondent by the orders of 26 November 2020 remains sufficiently clear to support a successful contempt application, even on the civil standard of proof.

54. Unlike other proceedings in the Tribunal, the rules of evidence apply to the Applicant’s referral application as sections 33 and 38(3) of the CAT Act make clear. With respect to the Applicant, who repeatedly acknowledged his lack of legal training, much of the evidence relied upon by him which was potentially capable of supporting his referral application, and the affidavit filed by him after the hearing pursuant to leave, would not be admissible in proceedings in which the rules of evidence apply. The referral application does not fail on that basis.

55. For the foregoing reasons, even if the Applicant had not made the concessions to which the Tribunal has referred, the discretion to refer his contempt application would not have been exercised in favour of doing so. The Tribunal does not consider that, had the Applicant been legally represented at the hearing, his legal representative could have overcome the obstacle to granting the referral application constituted by the availability of other remedies which are likely to be cheaper, quicker and more effective than referral of a problematic contempt application is likely to be. Nothing referred to in the Applicant’s post hearing affidavit changes that reality.

56. Although the evidence suggests that the Respondent has displayed a cavalier attitude to his obligations under the orders of 26 November 2020, to which he consented, for the reasons recorded above, declining to grant the referral application does not signal condonation of his conduct. Nor does it mean that the Applicant will be unable to secure compliance with the Tribunal’s orders. On the contrary, proceeding in reliance upon the provisions of the Fencing Act is likely to secure compliance with the orders, and result in the Respondent being liable for any additional costs of erection of the dividing fence which his conduct is found to have occasioned.

The vexatious litigant application

57. The Tribunal raised with the Applicant the jurisdictional basis for granting his application to have the Respondent declared a vexatious litigant. The Applicant frankly conceded that he understood that the Tribunal’s contempt powers pursuant to s 73 of the CAT Act encompassed the power to declare a litigant vexatious. As is clear from its terms, the section does not confer such jurisdiction.

58. Counsel for the Respondent submitted, by reference to s 3 of the Vexatious Proceedings Act 2008 (NSW) that the Supreme Court, or the Land and Environment Court, was the only “authorised court” which had power to make a vexatious proceedings order pursuant to s 8 of the Act. The Tribunal accepts that to be the case.

59. As the Tribunal was reminded by Counsel for the Respondent, s 8(6) of the Vexatious Proceedings Act provides that a judicial officer or member of a tribunal “may make a recommendation to the Attorney General that he or she consider making an application for a vexatious proceeding order in relation to a specified person”. Although the Applicant might not see it that way, Counsel for the Respondent thus effectively threw him a potential “lifeline”.

60. Although the Applicant did not expressly ask the Tribunal to proceed in reliance upon s 8(6) of the Act, in fairness to him, the Tribunal has considered whether doing so would be appropriate. Given that an application by the Attorney General for a vexatious proceedings order would be governed by the provisions of s 8(1) of the Act, it is appropriate to consider whether the Tribunal should make a “recommendation” by reference to the terms of the section. Section 8(2)(a) provides that, if the Court is “satisfied” that a person has “frequently instituted or conducted vexatious proceedings in Australia” it may make a vexatious proceedings order with respect to that person.

61. Section 6 of the Vexatious Proceedings Act defines “vexatious proceedings” to include proceedings which are “an abuse of the process of a court or tribunal”, proceedings “instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose”, “proceedings instituted or pursued without reasonable ground” and “proceedings that are conducted to achieve a wrongful purpose, or in a way that harasses, or causes unreasonable annoyance, delay or detriment, regardless of the subjective intention or motive of the person who instituted the proceedings”.

62. In Singh v The Owners Strata Plan 11723 & Ors [2013] NSWSC 1595, at [36] to [57], Slattery J extensively reviewed the principles governing the operation of s 8 of the Vexatious Proceedings Act. His Honour confirmed, at [40] that the power to make a s 8 order was discretionary. His Honour was satisfied that three “elements” needed to be satisfied in order to enliven s 8. They were (1) that the person has “instituted or conducted”, (2) “vexatious proceedings” and (3) that the person has done so “frequently”.

63. Slattery J recorded, at [44] that “proceedings” under the Act included all interlocutory and appellate action taken in connection with the proceedings and that, accordingly, the Court could have regard to “baseless interlocutory applications or appeals in deciding whether to make a s 8 order” (Attorney General v Wilson [2010] NSWSC 1008). His Honour further recorded that the Court may decide whether or not a proceeding is “vexatious” having regard to “the findings and result in the proceedings under consideration” and may also have regard to “the way the person has conducted himself or herself in the proceedings before the Court, including the way the defence is conducted in answer to the very proceedings brought forward under the Act” (see Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398).

64. By reference to the authorities to which he referred, Slattery J recorded, at [49] that what amounts to an abuse of process is “insusceptible to a formulation comprised of closed categories” but could be defined “inclusively” to include “proceedings that have no prospects of success or no real prospect of resulting in a remedy of substance but which involve unjustifiable expense or use of judicial resources, the pursuit of concurrent proceedings for substantially the same relief, or the pursuit of fresh proceedings after a remedial defeat in previous proceedings, causing others to incur legal costs in responding to hopeless applications in circumstances where the defendant has disregarded costs orders already made against him”.

65. On the evidence before the Tribunal, it is difficult to suggest that any of the foregoing descriptions applies to the conduct of the Respondent. Nor does the evidence before the Tribunal suggest that the Respondent is a litigant who is “genuinely but misguidedly … persuaded as to the correctness” of his own conduct (Singh, at [50]).

66. Relevantly for present purposes, in reliance upon the authorities to which he referred, at [52], and particularly by reference to the decision in Brogden v Attorney General [2001] NZCA 208, Slattery J held that to enliven the discretion created by s 8(1) of the Act, the alleged vexatious proceedings must also be instituted or conducted “frequently”.

67. In Brogden the New Zealand Court of Appeal said that “A litigant may be said to be persisting in litigating though the number of separate proceedings he or she brings is quite small if those proceedings clearly represent an attempt to relitigate an issue already conclusively determined against that person, particularly if this is accompanied by extravagant or scandalous allegations which the litigant has no prospect of substantiating or justifying.” As is not in doubt, the only civil litigation in which the Applicant and Respondent have been engaged relates to the dividing fence between their properties. With respect to the Applicant, to the extent that the Respondent’s evidence contains inflammatory, emotive and irrelevant allegations, almost without exception those followed upon material of that kind upon which the Applicant relied.

68. As the New Zealand Court of Appeal acknowledged in Brogden, and Slattery J reiterated in Singh (at [54]), the term “frequently” is “a relative term” which must be looked at in context of the litigation being considered. The fact that there has only been one piece of litigation involving the present parties does not mean that the Respondent’s conduct of that litigation could not be vexatious. Not insignificantly, as the reasons of the Tribunal of 13 January 2022 recorded, the Respondent was successful in relation to the time for compliance with the orders of 26 November 2020 on that occasion, and successfully resisted the substantive claims of the Applicant with respect to the cost of construction of the fence. In reality, the only issue in respect of which the Respondent was unsuccessful was the order that he pay two filing fees amounting in total to $104.42. In monetary terms, the Respondent was substantially more successful on the only previous occasion on which the Tribunal was required to resolve a controversy of significance between the parties.

69. Also relevantly for present purposes, Slattery J recorded, at [56] that the purpose of making orders under the Vexatious Proceedings Act was “not to punish but to protect both the public and the Court itself from vexatious proceedings” having regard to the limited resources of courts, and the need to carefully manage them in the public interest by avoiding the “expense, burden and inconvenience of baseless and repetitious suits”. The present dispute does not involve conduct of the Respondent which falls into that category.

70. In the circumstances discussed above, it is difficult to see how, if the Tribunal were minded to act pursuant to s 8(6) of the Vexatious Proceedings Act, the Attorney General would be likely to accede to such application, having regard to the principles governing any application which the Attorney General may make pursuant to s 8 of the Act. For the foregoing reasons, the Tribunal is not persuaded that it would be appropriate to exercise the discretion reposed in it by s 8(6) of the Vexatious Proceedings Act.

Consequences of refusing the Applicant’s referral application and vexatious proceedings order application

71. At the conclusion of the hearing with respect to the referral and vexatious proceedings order applications, the Tribunal canvassed with the parties whether, and if so how, the substantive issues in dispute between the parties might be appropriately resolved. So doing did not imply that either of those applications would fail.

72. Counsel for the Respondent submitted, at least by implication, that, although doing so might be well intentioned, there were compelling reasons why the Tribunal as presently constituted should not proceed to attempt to determine the factual issues in dispute between the parties, the findings with respect to which are pivotal to any orders varying or enforcing the orders of 26 November 2020. The Respondent relied upon the pending criminal proceedings against the Applicant as a reason for the Tribunal not attempting to resolve the remaining substantive dispute. Having regard to the provisions of s 128 of the Evidence Act 1995 (NSW), though a relevant consideration, if it were otherwise appropriate in the interests of justice to do so in a manner which accorded with natural justice, the Tribunal would not decline to attempt to determine the substantive dispute on that basis.

71. More influential, however, are the other matters raised on behalf of the Respondent. Although the Applicant disputes that such requirement relates to the collapsed retaining wall beneath the concrete slab on the boundary between the properties, the Applicant asserted that the Respondent in fact requires a development application with respect to a retaining wall in an area adjacent to the concrete slab. Whether the Respondent requires a development application with respect to any retaining wall on the common boundary, or so close to it that it could affect the construction of the fence, is unclear.

72. Notwithstanding that the rules of evidence would not govern the determination of the issue, the evidence of neither party with respect to whether a development application is required, or the area affected by it, much less what the conditions of a development application if required might be, or the cost of complying with them could be safely relied upon in relation to that issue. Quite simply, unless and until there is a document from the local council confirming that no development application is required with respect to any relevant retaining wall, or a development application issues identifying what is required, this issue cannot be resolved.

73. The issue is not without potential practical significance. The Applicant submits that, irrespective of whether, pursuant to a development application or otherwise, the Respondent undertakes, or needs to undertake remedial work by way of a retaining wall, a fence could be constructed in accordance with the dimensions recorded in the orders of 26 November 2020. Beyond the Applicant’s assertions in that regard, and despite his professed expertise to express such opinions, there is no reliable evidence in support of that contention.

74. It is common ground that the last time that a quotation was obtained for the construction of the fence was prior to the collapse of the retaining wall in July 2022. There is thus a real and substantial issue with respect to whether or not a retaining wall is required in order that the fence might be constructed in accordance with the orders of 26 November 2020. As both parties confirmed during the hearing, the boundary line on which the fence is to be constructed is not controversial. Nor are the specifications for the fence which is to be constructed as recorded in the orders of 26 November 2020, although they were determined prior to the retaining wall collapsed.

75. Having regard to paragraph 28 of the Respondent’s January 2023 Affidavit, it is apparent that, if a retaining wall is required so that the fence may be constructed in accordance with the orders of 26 November 2020, the Respondent will seek that the Applicant contribute to the cost of the required remedial work. That is because the Respondent asserts that, by reason of actions of the Applicant on his property adjacent to the retaining wall which collapsed, the Applicant caused or contributed to the collapse. As with the Applicant’s claim that the fence can be constructed in accordance with the current orders without restoring the collapsed retaining wall, the Respondent’s claims with respect to the need for remedial work and the extent to which the conduct of the Applicant caused or contributed to that need is not the subject of any reliable evidence. Clearly these are matters involving appropriate expert evidence, whether that is from engineers or fencing contractors.

76. The third and potentially significant issue between the parties is how the costs of construction of the fence, whatever they might ultimately prove to be, should be borne between the parties. In essence, the Applicant asserts that he should pay no more than one-half of the original quote to have the fence constructed, a sum of approximately $1,600. Not surprisingly, the expected cost of the fence has increased substantially since the orders were made. It is now 10 months since the last quotation was obtained. It is unlikely that the cost would not have risen since that time. Subject to how the cost of any necessary rectification work with respect to the retaining wall is borne between the parties, the Respondent seeks that he pay 63% of the present cost of constructing the fence and that the Applicant pay the remaining 37%. The difference in that regard appears to be in the order of $2,000.

77. Pivotal to the determination of how the costs of erection of the fence are borne would also be findings of fact with respect to the hotly contested issue of whose fault it is that, more than 2 years since the orders were made, the fence has not been constructed. That is likely to involve, even by confining the parties to the relevant issues in the proceedings, extensive cross-examination of each party, and, potentially, expert opinion evidence with respect to the probable cause(s) of the wall collapse. Although, superficially, doing so might be thought to be consistent with the “guiding principle” articulated by s 36 of the CAT Act, for the Tribunal to attempt to determine the outstanding substantive issues in the present circumstances would be unlikely to ultimately prove “just”, “quick” or “cheap”.

The Affidavit of the Applicant of 22 March 2023

80. The affidavit of the Applicant filed after the hearing pursuant to leave referred in detail to matters which were alleged to have emerged after the boundary between the parties’ properties was cleared, which were asserted to have the “potential to prohibit the effective and efficient building of the agreed new fence” (para 6-7). The Applicant then referred to the logistics of building the fence (paras 8-11) and to his “preferred option” (para 12). The Applicant set out in succeeding paragraphs the respects in which he sought variation of the consent orders of 26 November 2020 (paras 14, 17, 18, 25, 26 and 41). None of those matters advances the Applicant’s referral or vexatious litigant applications. Subject to there being appropriate evidence, including expert opinion evidence, they would be potentially relevant to the determination of the fencing dispute on the merits.

81. The affidavit referred (paras 27-39) to matters which would clearly be relevant to the determination of the fencing dispute on its merits. They have no relevance to the referral or vexatious litigant applications. To read those paragraphs is to realise that what appeared to be a relatively straightforward agreement to build a dividing fence has, for reasons which are hotly disputed, become anything but that. These paragraphs provide compelling support for the orders proposed by the Tribunal to enable the parties to finally resolve their dispute, and get a much needed physical barrier between them erected. Nothing emerging from the concluding paragraphs of the affidavit advance the Applicant’s case or militate against making the orders proposed by the Tribunal.

82. The Applicant attached to his affidavit two photographs of areas of the boundary between the parties’ properties. They do not advance the Applicant’s case. Also attached was a report from Plama Projects dated 3 February 2023 expressing opinions and recommendations with respect to the optimal method of dealing with issues associated with the construction of the boundary fence. Although these annexures would be likely to assume relevance at a hearing of the fencing dispute on the merits, they do not advance either of the Applicant’s present applications. They do provide further support for the orders proposed by the Tribunal with respect to the resolution of the fencing dispute.

83. The Applicant attached an invoice from a solicitor with respect to “attending you in conference on 27.2.23 and advising in relation to the NCAT proceedings (30 minutes)”, and “advising in relation to the NCAT proceedings including reviewing affidavit, suggesting changes and reviewing report of Plama Projects Pty Ltd (30 minutes)”. Although, as noted above, the affidavit appears to raise matters of potential relevance to the determination of the fencing dispute on its merits, it does not advance the Applicant’s referral or vexatious litigant applications.

84. For the foregoing reasons, the Tribunal has not invited the Respondent to make submissions with respect to the affidavit.

Conclusion

85. As recorded earlier in these reasons, the Applicant’s referral and vexatious litigant applications will be dismissed.

86. In the circumstances and for the reasons recorded above, the Tribunal will grant leave to either party to renew the fencing proceedings, and/or seek relief pursuant to the provisions of the Fencing Act discussed earlier in these reasons. The Tribunal will order that, within 28 days each party file a document setting out precisely the orders which that party seeks with respect to the fencing dispute, and only the fencing dispute, and, within the same period, file and serve any evidence, including expert evidence with respect to the fencing dispute, and only the fencing dispute, the evidence of each party in that regard being limited to one consolidated affidavit not exceeding 10 pages in length (excluding annexures). Doing so will hopefully assist the parties to focus on the issues which are relevant to their fencing dispute.

87. The Tribunal will order that within 21 days thereafter either party have leave to file affidavit evidence in reply to the evidence of the other party, such evidence not exceeding 5 pages in the case of each party (excluding annexures). The matter should be listed for directions with a view to fixing a hearing date at the end of that period. The Tribunal will reserve the costs of the present proceedings.

88. Although, as any such application is governed by the requirement to establish “special circumstances” pursuant to the provisions of s 60 of the CAT Act, it is difficult to see how either party could make a successful costs application, the Tribunal will reserve costs and make directions for submissions to be filed and served if a party seeks costs.

Orders

1. The application to refer the Respondent to the Supreme Court for contempt is refused.

2. The application for a vexatious proceedings order against the Respondent is refused.

3. Within 28 days, each party file and serve a document setting out with precision the orders sought by that party to give effect to the orders of the Tribunal of 26 November 2020, together with the lay and expert evidence in affidavit form upon which the party relies.

4. Neither party is to file an affidavit exceeding 10 pages in length (exclusive of annexures) without the leave of the Tribunal.

5. Grant leave to the parties to be legally represented.

6. A party seeking an order for costs of these proceedings file and serve written submissions in support of such application not exceeding 5 pages in length within 28 days.

7. A party resisting a costs application file and serve written submissions in opposition to such order not exceeding 5 pages in length within 28 days.

8. A party opposing an order pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) dispensing with a hearing of any costs application include submissions in support of such opposition in any submissions filed pursuant to order 6 or 7 of these orders.

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

Decision last updated: 31 March 2023