Wadsley v Jacobs & Mednis - [2005] SADC 94

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
WADSLEY v JACOBS & MEDNIS
Judgment of His Honour Judge Rice
27 July 2005
REAL PROPERTY - FENCING AND BOUNDARIES OF LAND - FENCES AND FENCING - CONTRIBUTION TO COST OF FENCING
MINOR CIVIL REVIEW
Ongoing dispute between neighbours as to the position and structure of a boundary fence - Special Magistrate used a Court appointed expert to provide a report without informing the parties in advance or allowing them an opportunity to comment on the report - report incorporated into Magistrate's decision - material irregularity - re-hearing and fresh evidence - fresh determination.
Magistrates Court Act 1991 s 29(1) and (3), s 38; Fences Act 1975; District Court Act 1991 s 42E(3), referred to.

WADSLEY v JACOBS & MEDNIS
[2005] SADC 94
Introduction

This is an application to review a judgment given in a minor civil action. The judgment given by the learned Special Magistrate is dated 24 September, 2004 and relates to a fencing dispute between neighbours living at 31 and 33 Eighth Avenue, St Peters. The right to seek a review is given pursuant to s 38(6) of the Magistrates Court Act 1991 (“MCA”). In undertaking this review, the Court is not bound by the rules of evidence and may inform itself as it sees fit (s 38(7) MCA). The Court is specifically empowered to re-hear evidence. Orders available to the Court are to affirm or rescind the judgment or substitute a judgment the Court considers appropriate.
Importantly, pursuant to s 38(7)(e) MCA, “in hearing and determining the review, the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.” The review by the Court is final and not subject to appeal (s 38(8) MCA).
Upon the hearing of the review, I permitted the applicant for review to be represented by a legal practitioner. Due to an illness suffered by the applicant, I formed the view that she would be unfairly disadvantaged if unrepresented. However, I made it plain during the hearing that, even if I granted the application, I would not order Ms Jacobs/Mr Mednis to pay the costs of counsel for Ms Wadsley. I was asked to leave open the question of costs incurred in the Magistrates Court (TP8-9).
Not only did I receive evidence on a number of occasions, I also attended on site on two occasions.
Judgment the subject of the review
As mentioned, this review arises from a judgment that involved a fencing dispute between neighbours living at 31 and 33 Eighth Avenue, St Peters. The applicant upon the review, Ms Wadsley, was the original respondent and lives at No. 31. The respondents upon the review, Ms Jacobs and Mr Mednis, were the original applicants and live at No. 33. To avoid any confusion I propose to refer to the parties upon the review in their capacities in this Court, namely, Ms Wadsley as the applicant and Ms Jacobs and Mr Mednis as the respondents.
The learned Special Magistrate made two attempts to resolve the dispute between these neighbours. As to the first attempt, the learned Special Magistrate decided that he did not have jurisdiction to resolve the dispute because he did not have current notices and cross-notices under the Fences Act 1975. He then ordered that there be service of a notice and cross-notice so as to give him jurisdiction under the Fences Act. This procedure was undertaken and the legislation thereby invoked. The second attempt, the subject of the judgment of 24 September, 2004, was no more successful than the first. For reasons that are explained below, both parties were dissatisfied with different parts of the judgment. Bearing in mind the history of the matter and the ongoing ill-will between the parties, I am not confident I will have any more success.
Basis for undertaking review and re-hearing the application
This application for review is made pursuant to s 38(6). The applicant, Ms Wadsley, is dissatisfied with the judgment. The review is not of the judgment, but “the matter”. Those words mean, and were intended to mean, that the review may encompass a complete reconsideration of a minor civil action. The powers conferred by sub-sections (6) and (7) confirm such an approach. However, that is not to say that this Court is bound to do so upon such a review. Much will depend upon the grounds for review.
Reviews such as this do not come within the Administrative and Disciplinary Division of the District Court. As such, this Court is not required to “....give due weight to the decision being appealed against and the reasons for it and depart from the decision except for cogent reasons” (see s 42E(3) District Court Act 1991).
In the normal course, this Court would give due weight to the decision being appealed against and would not depart from it without cogent reasons, but there is no statutory restriction or hurdle to that effect. The Court must be vigilant to ensure there is finality in litigation.
As mentioned, the first attempt at resolution of this matter by the learned Special Magistrate led to invoking the jurisdiction of the Court pursuant to the Fences Act. The second attempt led to His Honour’s judgment of 24 September, 2004. What concerned me, and what led to my decision to conduct a review that encompassed re-hearing evidence and receiving fresh evidence, was the procedure adopted by the learned Special Magistrate.
Once the notices and cross-notices under the Fences Act came before the Court for determination, the learned Special Magistrate heard the parties and any evidence each desired to call. His Honour then reserved his decision on 3 September, 2004. His Honour made it plain that he would have regard to the evidence and material provided from all stages of the dispute in the Court.
The reasons of 24 September, 2004 record that, on 22 September, 2004, the learned Special Magistrate “....returned to the site with Mr John Robinson, a Court Expert in relation to building matters.” As can be seen from His Honour’s reasons, he annexed a copy of Mr Robinson’s report to the reasons. Considerable reliance was placed upon Mr Robinson’s report and some of his recommendations were incorporated in the ruling. The parties were not given an opportunity to read the report before His Honour’s judgment, nor were they given an opportunity to cross-examine him or adduce contrary evidence. Although selection of a suitably qualified expert appears to lie with the Court, the proposal to appoint such an expert would need to be mentioned to the parties, not least because one or both may have already consulted that expert or for other reasons may regard the person as disqualified or unqualified. This was a material irregularity. Indeed, part of the complaint is that the parties did not know of the proposal to use a Court appointed expert and no opportunity was given to comment. Both parties disagree with parts of Mr Robinson’s report.
Clearly, the Court had power to refer questions of fence structure, construction and position to an expert in that field pursuant to s 29(1) MCA. The Court is empowered to adopt such a report in whole or in part (sub-section (3)). The legislation is silent as to the status of such a report once prepared or adopted in whole or in part. However, in my view, the rules of procedural fairness dictated that the parties be consulted in advance of a referral to an expert and then any such report be provided to them in advance of the decision to enable further evidence to be called and submissions made concerning it.
Such a procedure was not adopted in this case and it is for that reason that I decided to re-hear some evidence and take additional evidence. There was also an application to hear fresh evidence which, quite apart from procedural shortcomings, was enough in itself to re-hear the matter.
During the hearing before me, I allowed the parties to vent issues that were probably irrelevant or, at best, on the margins of relevance. I indicated that I would receive such evidence and decide later whether and how much of it was relevant to the issues before me. I have undertaken that process. I do not refer to all issues raised by the parties either because they were irrelevant or did not have any effect upon matters to be considered by me. Questions of credibility of the parties are of only limited relevance in this process.
Further, because this review amounted to a re-hearing and the taking of fresh evidence, I must make a fresh determination. Although I propose to refer to the reasons of the learned Special Magistrate, it is not necessary that I find error within those reasons. Having considered those reasons in light of the material received on this re-hearing, there are many aspects of His Honour’s determination with which I agree.
Scheme of the Fences Act 1975
The Fences Act applies to the applicant (Ms Wadsley) and the respondents (Ms Jacobs and Mr Mednis) because they are adjoining owners, that is, the respective pieces of land have a common boundary.
The proposal is, and has been for some years, to erect a fence dividing the land from these adjoining owners. The respondents built a dividing fence at the front section but it encroached on the applicant’s land. It was not built along the boundary line. The fence was ordered to be removed by the learned Special Magistrate. There is no fence at the front section at present, although the frame is still there. The cladding was removed by the applicant and returned to the respondents. The respondents must remove the frame at their expense, including digging out the posts. In this instance, for reasons that are detailed below, it is not proposed that the fence be of the same construction along its entire length. To suit the respondents, portion of it is to be a masonry fence. Part of the dispute between the parties relates to different height levels of soil on their respective land and therefore how much there is a need for a plinth in the form of concrete sleepers to act as a low retaining wall, whose land they are to be on and who is to pay.
There is no absolute requirement that the dividing fence be on the boundary. Normally, the fence structure will straddle the line of the boundary. Part of the dispute here is where the material which comprises the structure of the fence should sit in relation to the surveyed boundary. If the proposed fence encroaches into the land of the adjoining owner, the occupier making such a proposal should indicate whether it is proposed to pay compensation to the adjoining owner for loss of occupation, and, if so, the amount of that compensation. In the absence of agreement, the Court is empowered to award compensation for loss of occupation.
The powers of the Court under s 12 to make a determination where there is a dispute necessarily extends to the adequacy of the fence. The relevant sub‑sections are as follows:-
(7)     If fencing work consists in the erection of an adequate fence or a fence of better quality than an adequate fence, or the conversion of an existing fence into an adequate fence or a fence of better quality than an adequate fence, then, in the absence of agreement between the adjoining owners, the contribution for which an adjoining owner is liable shall be one-half of the minimum cost of erecting an adequate fence, or converting the existing fence into an adequate fence.
(8)     For the purposes of this section─
(aa)   ....
(a)     in any other case─an adequate fence is a fence that conforms with general standards of good fencing existing in the locality in which the fencing work has been or is to be performed and is adequate for the purposes of the owner against whom contribution is sought;
Within those parameters, there is a discretion given to the Court concerning the height, type and colour of building materials to be used. The Court should, in that regard, endeavour to strike a balance between any competing wishes of the parties. The Court should strive not to impose a type or colour of fence that neither party wishes.
What is comprehended within the meaning of an “adequate fence” will not only depend upon the locale where it is to be built but also, to some very limited degree, the extent of conflict between the neighbours and the need to reduce the scope for future conflict. The Court should also strive to foresee the risk of such future conflict and make orders accordingly, especially as to the stages of the work.
There is some limited measure of agreement in this case to which I will come.
The orders of the learned Special Magistrate of 24 September, 2004 are rescinded. I make orders as indicated below.
Identification of fence sections or types along its length
The fence is to comprise a few different constructions along its length. I propose to identify them, and different considerations and orders apply to some of them:-
1.A masonry pillar that was installed by the respondents as part of their renovations. The pillar is at the Eighth Avenue boundary and should have been entirely on the respondents’ land but encroached on to the applicant’s land. Questions arise as to whether this pillar should be moved or altered so that there is no encroachment.
2.From the pillar going towards the back for a distance of about 9 metres (adjacent to the front room of the applicant’s house closest to Eighth Avenue, sometimes referred to as the garage – see DC D8). A separate question for this portion of the fence is whether the applicant should be responsible for any costs because the existing fence was said by her to be in good repair and not in need of replacement. The respondents maintain it was in bad repair and needed replacing.
3.From the position identified in para 2 up to the masonry wall. (The length of fence from pillar to masonry wall is about 23 metres.)
4.The masonry wall itself which is proposed to be 6.3 metres or 6.8 metres (the evidence on this point varied) (it was previously 5.3 metres) in length and of a height of 2.9 metres (P7 AMC).
5.That portion of the fence from the other end of the masonry wall to the back boundary (which abuts Eighth Lane), approximately 17 metres.
Main issues for resolution
These are the main issues to be resolved:-
1.Where is the fence to be positioned?
2.Where are the structures of the fence to be in relation to the line or position of the boundary?
3.Are concrete sleepers or the like needed for soil retention and/or to prevent water from one piece of land flowing to the other and, if so, where are the sleepers to be positioned in relation to the fence and who is to pay for them?
4.What type and colour of fencing material is to be used?
In addition to these matters, there is the question of the cost of demolition and removal of the existing fence where the masonry wall was positioned and the back 17 metres (approximately), the overall cost of the fence and who is to perform the work.
The other complicating feature is that the respondents want portion of the fence to be in the form of a masonry wall that is proposed to be higher than an adequate fence. It will be necessary for the fence to be higher than an adequate fence, partly for it to be in keeping with the higher masonry wall and partly because the respondents have built on an addition to their house that is built-up and overlooks the side of the applicant’s house. There is also a raised patio area on the respondents’ side where the masonry wall (and water feature on their side) is to be built. Both parties are entitled to privacy in this area because it also coincides with an outdoor area for the applicant. The question arises as to whether the applicant should have to pay a greater amount for a fence that is higher than she needs. The legislation dictates that she should only have to pay half the cost of an adequate fence, although that begs the question for these neighbours.
A previous masonry wall had been built but it was demolished because no council approval had been given and it was said to be unsafe (although I make no finding about that.). It also encroached on to the applicant’s property between about 17 centimetres to 25 centimetres. That wall and its encroachment seem to have been the beginnings of a running dispute between these neighbours. It must have been obvious to the applicant when the masonry wall was being built that it was encroaching on to her land. It remains a mystery as to why no action was taken until after it was completed.
I will deal with the various questions, although not necessarily in the order in which they are posed above.
Where is the fence to be positioned?
As already mentioned, although there is no absolute requirement that the fence be built on the boundary, that is the preferred course in the absence of some very good reason. Subject to two exceptions, here there is no reason to build the fence other than on the boundary. Some vegetation may have to be removed but that cannot be helped.
The boundary line which is to be used is that shown on the Calder Harris survey of 2 July, 2003 (D7 AMC; A12 DC). It is the most recent and is supported by a letter dated 9 July, 2003 from Mr Rod Burford, Calder Harris Surveyors Pty Ltd (D7). As mentioned, with two exceptions, the fence is to be constructed along this line in the manner detailed below.
The first exception relates to that portion of the boundary which meets Eighth Avenue. The respondents, as part of their renovations and additions, installed a front corner pillar. Unfortunately, it also encroached on to the applicant’s land, in this instance by about ten centimetres (although estimates differ). I propose that the boundary fence abut the pillar along the boundary line. The encroachment is not sufficient to justify compensation. No alteration or movement to the pillar is necessary. The applicant does not have to bear any of the cost of the pillar.
The second exception relates to the proposed replacement masonry wall. The dimensions and specifications of the wall are to be in accord with council approval. The respondents had approval to build the masonry wall but, as I understand the timetable, the time within which the work was to be done may have lapsed. In any event, the wall has not yet been built. Such a wall is to be built entirely upon the respondents’ land except that an edge may form part of the boundary fence provided it follows the line of the boundary (and does not encroach on to the applicant’s land). The respondents must render that part of the wall that forms the fence and faces on to the applicant’s land. The respondents must paint that face a colour of the applicant’s choosing (to be notified by the applicant, in writing, to the respondents, within seven days of this judgment). The applicant is not to pay for the masonry wall as such.
What is the type of fence structure?
Apart from the pillar and masonry wall, the type of fence is to be galvanised steel posts and rails. The posts (50 mm x 50 mm) and rails (40 mm x 20 mm) should be on the respondents’ side of the boundary line such that the outer edge or face of the rails is exactly along the line of the boundary. I accept the evidence of Mr Sneddon before the learned Special Magistrate (AMC TP39). Single‑sided, slate grey colorbond sheeting or cladding, fencing grade, (height to be referred to later) is then to be fixed to those rails. The fence is to have an appropriate capping along its length.
Are concrete sleepers necessary to act as a plinth?
The type and positioning of any cement sleepers or plinth requires more detailed consideration. There is no need for a plinth between the pillar and a point back about 9 metres. That much is agreed. I find that the front section of fence was dilapidated and inadequate as a boundary fence. It needed replacing.

It is clear to me from my own inspection of the site, and I do not understand it to be disputed by the respondents, that their land is higher than that of the applicant from about the position of the carport of the respondents up to where the new masonry wall is to be built. This is supported by various photographs (see D13 AMC). It is not entirely clear to me how that happened. Part of it may have been because the applicant excavated some of the soil from a walk-way along her side of the fence. I have not concerned myself with the carport structure or the question of water from the roof of the garage on to the applicant’s walk-way. However, relying upon the development application and building plans from 1998 (A13), my own inspection and the evidence of Mr Minney, retired engineer, the respondents’ land along that side is naturally higher and has been further built up to accommodate part of the extension (partly a music room) that is about 900 mm from the boundary.
I accept the applicant’s submission that the obligation rests with the respondents to provide support for the soil on their land and so as to prevent a water run-off on to the land of the applicant. There is no warrant for any sleepers to be on the applicant’s property along that portion of the fence. The obligation lies on the respondents to have any such sleepers on their property because it is to support their soil. Further, the cost of labour and material in this regard must be borne by the respondents. The respondents may be able to salvage some of the cement sleepers that are presently in place. The difference in the levels of the two pieces of land may vary, but, on the evidence, the respondents’ land is between 170 mm and 200 mm higher than that of the applicant. The plinth should rise at least 200 mm out of the ground.
I make it plain that the portion of land that needs support starts from about 9 metres from the Eighth Avenue boundary up to the new masonry wall.
The total height of the fence, including the section where there is the plinth, from the front pillar to the masonry wall is to be 1.8 metres. Where there is a plinth, the sheeting or cladding is to have a drip line or gap of 10 millimetres at the bottom.
For that portion of the boundary from the far end of the masonry wall to the back boundary, although there is a slight difference in soil levels of the two properties (the applicant’s being slightly higher because of the addition of a garage), it is not sufficient to warrant cement sleepers. The fence along that portion of the boundary is to be constructed in the same manner as the front portion and is also to be at a height of 1.8 metres and follow the height of the land even where it goes up. In my view, the fence as described herein is an adequate fence for the purposes of these parties.
Costs of the works
There remains a question about the apportionment of the cost of labour and materials for the fence. Although the applicant is not liable for any part of the cost of the pillar and masonry wall as such, she still has the benefit of a fence in those positions. An adequate fence for these parties is as I have described. The applicant should bear the cost of 55 per cent of the labour and materials for such a fence and the respondents 45 per cent. The respondents are to bear the cost of labour and materials for the plinth.
The cost of demolition and disposal of any part of the fence that is still in place between the two properties is to be borne equally by the parties. That work is to be carried out by the fencing contractor.
I confirm that the applicant is not required to make any contribution for fencing that is formed by the pillar and masonry wall.
The fence construction is to await construction of the masonry wall. If the masonry wall is not constructed by the end of 2005, I would propose to order that a fence with a cement plinth is to be constructed of the same type, height and colour as provided for that portion of the fence from the corner of the applicant’s front room back to where the masonry fence was going to be. Such a fence will then take the place of the masonry wall and go as far back as the masonry wall was planned to be. From that point back is to be as previously indicated. In that instance, the apportionment of cost should be 50/50. I will not make an order to that effect at this stage.
Quotation and performance of the work
I was impressed by the written evidence of Mr Sneddon of Prospect Fencing. I accept the view of the learned Special Magistrate in this regard. Mr Sneddon will be asked to provide a quotation for the fencing work. I ask that the quotation be provided to the Court and parties within 21 days. Within 21 days of the quotation being received by the Court, assuming it is in order, the parties are required to pay into Court the amount each is required to contribute towards the cost of the fence. The work is to be completed by the end of January, 2006.
The appeal is allowed and the orders of the learned Special Magistrate are rescinded. I make orders in accord with the schedule attached.
SCHEDULE OF ORDERS TO BE MADE
1.The front section fence frame and temporary fence where the masonry wall was sited are to be removed by the respondents, or on their behalf, and at their expense. The applicant is to allow access to her land for that purpose.
2.Back section fence frame and rusted sheeting to be removed (by an independent contractor) at a cost to be shared equally by the parties.
3.The parties, at their own expense, are to remove obstacles, trees, shrubs or other vegetation along the boundary line in readiness for the fence construction. Each of the parties is to allow access to the other for that purpose.
4.The fence is to be constructed along the boundary line in accord with the survey of Calder Harris of 2 July, 2003.
5.The fence is to be constructed of galvanised steel posts and rails. The posts (50 mm x 50 mm) and rails (40 mm x 20 mm) are to be on the respondents’ property such that the outer face of the rails is exactly on the boundary.
6.The cladding is to be single-sided, slate grey colorbond sheeting, fencing grade.
7.With the exceptions of the pillar and masonry wall, the total height of the fence is to be 1.8 metres.
8.The respondents, at their expense, are to construct a cement plinth in the position indicated. There is to be a drip line of 10 millimetres at the bottom of the fence along the line of the plinth.
9.The applicant is to bear no cost for the pillar and masonry wall.
10.The applicant is to bear 55 per cent of the cost of the fence so described, the respondents to pay 45 per cent.
11.The works are to be carried out by Mr Sneddon of Prospect Fencing in accord with the timetable herein.