Zeng v Crane
[2022] ACAT 70
•17 August 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
ZENG v CRANE & ANOR (Appeal) [2022] ACAT 70
AA 51/2021 (XD 478/2021)
Catchwords: APPEAL – civil dispute – probative evidence – onus of proof – role of Tribunal – whether there was error of fact or law by the Original Tribunal – appeal dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 8, 22, 32, 33, 79, 82
Cases cited:Australian Broadcasting Authority v Project Blue Sky Inc. & Ors (1996) 71 FCR 465
Casino Canberra Limited 051 204 114 v Kidman [2022] ACAT 22
Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435
De Flumeri v Canberra Discount Chemicals Pty Ltd & Anor [2016] ACAT 50
Sarbandi v Sharif [2017] ACAT 57
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
The Owners – Units Plan no 1475 v Davidson & Anor [2022] ACAT 10
Tribunal:Presidential Member H Robinson
Senior Member J Lennard
Date of Orders: 17 August 2022
Date of Reasons for Decision: 17 August 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 51/2021
BETWEEN:
SU ZENG
Appellant
AND:
MARC CRANE
First Respondent
SARA FARRELL
Second Respondent
APPEAL TRIBUNAL: Presidential Member H Robinson
Senior Member J Lennard
DATE:17 August 2022
ORDER
The Tribunal orders that:
The appeal is dismissed.
………………………………..
Presidential Member H Robinson
For & on behalf of the Tribunal
REASONS FOR DECISION
This is an appeal from a decision of the Tribunal (the Original Tribunal) in Zeng v Marc Crane & Sara Farrell (XD 478 of 2021). The application concerns a claim for nuisance and trespass relating to a neighbourhood dispute.
The parties
The appellant and the respondents are neighbours. Their properties share a common boundary, on which is located a Colorbond fence.
Unusually, the stormwater access point is located on the boundary between the properties, accessible from either property.
The original application
The appellant (then applicant) lodged her civil dispute application on 17 May 2021 (the application).
In that application, the appellant asked for three orders:
(a)Commitment to no further acts that interfere with my property;
(b)Formal written apology for trespass on my property; and
(c)Commitment to not further trespass on my property.
In her application and then in response to directions made by the Tribunal, the appellant submitted materials and evidence alleging three incidents giving rise to causes of action against the respondents.
The first incident happened in October 2016. The appellant says that she returned home from a vacation to find that a channel had been cut into her premises through the concrete which surrounded her garage. She surmises that the purpose of this was to allow water to flow from her neighbours’ property to her own (the first trespass claim).
The second incident happened on 3 October 2019. The appellant returned to her property after a short period away to find a man standing in the middle of her backyard. The man identified himself an officer of the ACT Government and told the appellant that he was present on her property to deal with a stormwater emergency. There is an access point to access the boundary of both their properties, but the man was not near it. She surmised that he had entered her property from the respondents’ by removing a panel from the Colourbond fence that divided their properties. There was another man on the respondents’ side of the fence. At the same time the appellant noted that the first respondent was standing on his own property observing the man on the appellant's property. Sometime later, another man named Mr Mulville arrived. The appellant says that she asked Mr Mulville if there was a stormwater emergency and he said “no”. He and the other two men then left. The appellant alleged that the second respondent “instigated this operation and that these men were his accomplice in the invasion of my property.” She says that first respondent purported to authorise Mr Mulville’s attendance on the property in circumstances where there was no emergency (the second trespass claim).
The appellant’s third claim is that the respondents erected a large concrete driveway on their own property that was “designed and built to slope towards the boundary of my…” so that “any rainfall runoff will be shed directly onto my property.” She argued that the design should have been one that diverts runoff into the street (the third claim).
In support of her claim, the appellant filed a witness statement by her friend, Mr Paul Gillespie dated 18 June 2021. Mr Gillespie attests to the size of the driveway and was a witness to some of the events of 3 October 2019. He also attested to the traumatic effect the events of 3 October 2019 had on the appellant.
The appellant also filed a series of documents and emails obtained from ACT Transport Canberra and City Services (City Services), including communications with Mr Mulville concerning the reason for his attendance, and two photographs that show water pooling on the side of the respondents’ driveway that borders her property.
The respondents filed a response and a variety of supporting documentation.
In relation to the first trespass incident, the first respondent admitted that he undertook work that was broadly of the kind alleged, but says that it was restoration work conducted after the appellant and Mr Gillespie undertook work in the area that altered the natural waterflow. The parties’ arguments are set out in more detail below.
In relation to the second trespass incident, the first respondent says that he was at home on personal leave when a man working for City Services approached him at home and asked for access to the stormwater easement and access point. He explained that the access point traversed both properties. The man explained that he had been unable to contact the appellant. He discussed the urgency of resolving the stormwater issues and that City Services had a right of access in emergencies. Based on that explanation, the first respondent allowed the City Services employee to access the access point. He remained in his backyard for the inspection but did not get involved with the conversation between the officials and the appellant and Mr Gillespie. Since being the subject of a complaint by the appellant, the respondent has contacted City Services and obtained a series of emails and job reference numbers that he put into evidence before the Tribunal. He denies ever trespassing on the appellant’s property.
In relation to the third claim, the respondents denied that the new driveway was significantly larger than the old driveway and denied that it caused a nuisance.
The respondents filed a document that was a submission that attached a witness statement from the first respondent. They also filed photographs of the driveway and that attached photographs of the channel area.
The respondents relied upon a statement from the builder of the driveway, Mr Connor. In that statement, Mr Connor briefly set out the design methodology and stated that the design was to ensure that there was no water pooling or run off to the neighbouring property.
The respondents also filed email correspondence between the first respondent and a person who appears to be from City Services about the incident on 3 October 2019.
The application was heard on 27 September 2021. Both parties attended in person. The appellant was assisted by an interpreter and by Mr Gillepsie, who was also a witness to some of the events which were the subject of the proceedings. The Original Tribunal offered the appellant an opportunity to cross examine the builder Mr Conner, but she declined, so he was not called to give evidence.
After hearing from the parties the Tribunal made orders dismissing the application and gave oral reasons.
The Original Tribunal’s decision
The Original Tribunal noted that the appellant did not press her claim in relation to the first trespass incident. The appellant advised her that the matter had been resolved, and she thanked the appellant for clarifying that and narrowing the issues in dispute.
In relation to the second claim, the Original Tribunal observed that:
A contractor turned up and they had entered Ms Zeng’s backyard through a fence panel while she was out. So without her approval and without giving her prior notice they had entered the property and she and Mr Gillespie had come back to find this person in her backyard, which I appreciate was a very distressing incident. I understand the distress that that caused Ms Zeng in relation to that, incident. It must have been a very unpleasant surprise to have.
But the issue here is whether Mr Crane was in some way responsible for this and, more specifically – because I have to work within the framework of the law – whether this intrusion into Ms Zeng’s property was as a result of a trespass committed by Mr Crane. So I just go back to what it takes at law, so legally what an applicant has to establish in order to succeed in a claim of trespass. So first of all there has to be a physical intrusion onto the applicant's land. If that intrusion is at a height which potentially – which is potentially necessary for the ordinary use and enjoyment of the occupier.
Well, there is really no dispute that there was a physical intrusion. This person has come onto Ms Zeng’s land, so that is easy. The first bit is easy. The second bit is a little less easy. So, it has to be without authority. It has to be by the direct action of the respondent, so it has to be something that Mr Crane has directly done, and it has to be intentional. We won’t go into the details, but in some circumstances negligence is sufficient. So, in this case, although I do understand Ms Zeng’s distress, she did not establish on the balance of evidence, that is that it is more likely than not that Mr Crane took any direct action which caused this third person to enter her property.
The accounts given by Ms Zeng and Mr Gillespie and the account given by Mr Crane is entirely – they can be reconciled. So, for some reason this person has said Mr Crane told him he could go on the property. Mr Crane says he did not and Mr Crane is here and giving evidence. This unidentified person was not giving evidence so what he may or may not have said is really – in that regard on the balance of evidence, I prefer the evidence of Mr Crane, who was there and knows what he says, over what somebody may have told Ms Zeng and Mr Gillespie.
So I was not satisfied that Ms Zeng had established on the balance of evidence that Mr Crane had taken direct action to cause this intrusion into her backyard. And whether there was a reason for it or not, it is not Mr Crane’s fault. And if Ms Zeng wants to pursue an action or a complaint against the ACT government on the basis that the entry into her property was unauthorised, then she is free to do that. But it has got nothing to do with these proceedings and really nothing to do with Mr Crane. So that aspect of the application I did not permit.
In relation to the third trespass application, the Original Tribunal noted that the appellant had not identified particular legal grounds of the claim, but considered that it seemed to ‘fit comfortably’ within a claim for nuisance. She summarises the basis for a claim in nuisance as being substantial and unreasonable interference in relation to the appellant’s enjoyment of her land by the respondent. She considered all the evidence, and concluded that:
there was insufficient evidence adduced or before the tribunal to enable me to be satisfied that Ms Zeng had proved on the balance of probabilities that this new driveway had a profile which caused the water to create a flooding risk, whether that risk actually occurred or not.
She also noted that if the appellant considered the driveway breached planning laws, she may choose to lodge a compliance complaint with ACTPLA.
Appeals within ACAT
Section 79(3) of the ACT Civil and Administrative Tribunal Act 2008 provides that a party to the original application may, by application, appeal the decision to the tribunal on a question of fact or law.
Section 82 of the ACT Civil and Administrative Tribunal Act2008 provides that an Appeal Tribunal may, as the tribunal considers appropriate, deal with an appeal as a new application; or as a review of all or part of the original decision on the application by the tribunal. An Appeal Tribunal may receive further evidence relevant to questions of fact either orally in a hearing, by written statement or in another way.
The Appeal Tribunal dealt with this application as a review to determine whether the Original Tribunal had made an error of fact, an error of law or an error in the exercise of discretion. As such, the appellant was required to show that the Original Tribunal made an error of fact or law that was material to the result.[1]
[1] Casino Canberra Limited 051 204 114 vKidman [2022] ACAT 22 at [46]
This Appeal Tribunal has adopted the approach and principles set out below in reviewing the original decision and reaching its conclusion. These principles were summarised in The Owners – Units Plan no 1475 v Davidson & Anor[2] at paragraph 5:
[2] [2022] ACAT 10
5.In the recent decision of Ezekiel-Hart v Council of the Law Society of the Australian Capital Territory the tribunal distilled from the case law the following key principles which guide the conduct of appeals in the tribunal:
1. Pursuant to section 79(3) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) a party to the original application may, by application, appeal the decision to the tribunal on a question of fact or law. Section 82 of the ACAT Act provides the process by which such appeals are to be conducted.
2. The manner in which appeals in the tribunal are dealt with now appears to be substantially settled law. Section 79(3) of the ACAT Act provides that a party to an original application may appeal the decision to the tribunal “on a question of fact or law.” The case law on section 79(3) recently affirmed and applied in Bailey v Bottrill (Bailey) and in ACN 120 452 744 Pty Ltd v Newham Business Brokers Pty Ltd (Newham) has interpreted section 79(3) to mean that the appellant must show an error of fact or law in the decision under appeal and that the error affected the result.
3. Section 82 of the ACAT Act gives the Appeal Tribunal a choice as to the method by which an appeal pursuant to section 79 should be heard. The case law on section 82 was similarly affirmed and applied in Bailey and Newham.
4. That case law draws upon Refshauge ACJ’s consideration in Giusida Pty Limited v Commissioner for ACT Revenue (Giusida) of the method by which a tribunal appeal should be heard. His Honour repeated his earlier observation in Legal Practitioner v Council of the Law Society of the ACT (Legal Practitioner) that an appeal under section 82(a) of the ACAT Act is what is usually called a “hearing de novo” and an appeal under section 82(b) is what is usually called a ‘rehearing’. ...
5. Bailey and Newham similarly affirms the tribunal’s own distillation of principles relevant to such appeals set out in the decision in Excel Intelligent Pty Ltd v Thomson (Excel Intelligent). That distillation drew upon remarks of Burns J in B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar (B & T Constructions) where His Honour quoted from a series of judgments about the nature of a rehearing. The tribunal distilled five principles from this review:
(a)An appeal court (or an appeal tribunal) must determine whether the decision appealed against is wrong because the court at first instance (or an original tribunal) fell into an error of law, made a finding of fact that is clearly wrong or exercised a discretion on a wrong principle or in a way that is clearly wrong.
(b)Ordinarily, if there has been no further evidence admitted or no relevant change in law, a court in entertaining an appeal by way of rehearing (or an appeal tribunal) can exercise its appellate powers only if satisfied that there was an error on the part of the court below (or an original tribunal).
(c)The appellate court (or an appeal tribunal) will give proper allowance to the advantage of the court of first instance (or an original tribunal) who saw and heard the witnesses, so that, ordinarily, facts found based on the assessment of witnesses will not lightly be overturned.
(d)The appellate court (or an appeal Tribunal) is obliged to conduct a real review of the trial and the reasons of the court of first instance (or an original tribunal).
(e)In an appeal by way of rehearing, once error below has been found (after making proper allowance for the advantages of the trial judge or original tribunal), the appellate court (or appeal tribunal) can substitute its own decision based on the facts and the law as they now stand. [citations omitted]
Stated more simply, the appeal jurisdiction is about the correction of error. It is not an opportunity to have “a second go”:
… It is not sufficient for the appellant to persuade the Tribunal that it might have (or would have) decided the matter differently had it been the decision-maker. The appellant must first show error (or a mistake) in the original decision. Only if that occurs may the Tribunal on appeal set aside the original decision. It may then substitute its own decision by reference to the facts and law that applied to the claim before the original tribunal, save for circumstances where leave is granted for further evidence to be received as was given.[3]
[3] De Flumeri v Canberra Discount Chemicals Pty Ltd & Anor [2016] ACAT 50
Moreover, even if an error is established, to be a basis for setting aside the original decision, an error must be one that can make a material difference to the outcome.[4]
The appeal application
[4] De Flumeri v Canberra Discount Chemicals Pty Ltd & Anor [2016] ACAT 50 at [27]
The appellant made written submissions which referred to “errors of fact, law, or discretionary errors”. The written submissions were mostly reassertions of the submissions made at the original hearing, but they were expanded upon during the hearing of the appeal.
The appellant also made an application for the admission of additional evidence, which we have also considered.
In addition to the orders sought before the Original Tribunal, the appellant sought compensation for “ongoing trauma” and an order for modifications to the respondents’ driveway “to take the water runoff into the drainage system onto the street rather than into my place”. These are new issues that cannot be considered in an appeal and accordingly we have not considered them.
The application to admit new evidence
The appellant sought to submit new evidence to the Appeal Tribunal:
(a)Photos and videos of the driveway.
(b)Emails by Mr Chowdhury relating to the driveway and runoff from the driveway.
(c)Tax invoices from Armstrong Legal.
The photos and videos
The appellant sought to bring evidence in the form of two videos and additional photographic evidence, taken by the appellant in December of 2021. The purpose of this evidence was to establish extensive flooding in the driveway area of the appellant’s property, which she asserted was due to the runoff from the new driveway in the respondents’ property. The issue of runoff from the respondents’ driveway was before the Original Tribunal.
The video was taken in December 2021, in a rain event after the Original Tribunal hearing. The appellant urged the Appeal Tribunal to accept this evidence, created after the original hearing, because the evidence was relevant to two alleged errors by the Original Tribunal: what portion of the grassy strip between the parties’ properties was owned by the respondent; and the proper meaning to be given to the response by the appellant to a question asked in the original hearing about pooling of water on the appellant’s driveway. Clearly, it was not available at the time of the original hearing.
The respondent objected to the Appeal Tribunal accepting the photos and video on several grounds:
(a)They are evidence produced after the original hearing.
(b)The video was filed after the due date for evidence in reply as set out in the Appeal Tribunal’s directions; and
(c)The appellant had removed the grass from the grassy strip between the properties, after the original hearing and that the alteration of the landscape resulted in the appearance of greater water flow due to the washing away of soil.
The issue of the admission of fresh evidence on appeal is a complex one that involves a balancing between the rights of the parties and the interest in the finality of litigation. This Tribunal is most reluctant to allow a party to introduce at the appeal stage complex and controversial new evidence that raises new factual issues which may extend the length of the proceedings or recast the case at the appeal stage.[5]
[5] Australian Broadcasting Authority v Project Blue Sky Inc. & Ors (1996) 71 FCR 465 at 480-481
Additionally, in conducting a review of the original decision, it is rarely appropriate to use evidence obtained after the conclusion of the proceedings to determine whether there has been an error of law or fact by the Original Tribunal. This is particularly where that evidence relates to events that happened after the proceedings were decided and where, as here, there appears to have been a change in circumstances of the event – in this case, an alteration to the landscape. Further evidence would be required to establish what had changed, and what consequences that has. If there was too a substantial alteration of the landscape the video would not be relevant to what happened at the time of the events that formed the basis for the application. All this suggests that it is not in the interests of justice to admit the video, even were it permissible.
Additionally, the video was filed contrary to directions. The Tribunal made directions in relation to the appeal on 8 November 2021. These included directions that the appellant file any evidence to be relied upon at the appeal hearing by 6 December 2021, and any material in reply by 19 January 2022. The appellant filed the video evidence on 25 January 2022. Directions are made for a reason, being to ensure that all parties are aware of the case they are to meet. Filing evidence late in the process may deny the other party an opportunity to assess and respond to that evidence, and hence give rise to a breach of natural justice. Even if we had been satisfied that the video was relevant, we would have been reluctant to admit it for reasons of fairness.
The photographic evidence was also examined by the Appeal Tribunal. The photos establish that there was some, but not excessive, water puddling in the appellant’s driveway after 17ml of rain. The photos do not establish that the water flowed from the respondents’ property or driveway. It is unlikely that the photographs, if adduced at first instance, would have changed the result of the hearing.[6] Accordingly, the Appeal Tribunal did not admit the photos or the video evidence.
[6] Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435 at 444 per Dixon CJ
As to the issue of the ownership of the grassy strip, the respondents accepted that only some of the previously grassy strip was on their property. The appellants provided no evidence or argument as to how the belief that the respondents owned the entire strip had led the Original Tribunal into error. The appellants did not assert that there was a duty or obligation on the respondents to ensure no runoff from their property to the appellant’s property. In short, there was nothing in the original decision which turned upon the ownership of the grassy strip and it is not a matter that need be dealt with now.
We are satisfied that the question of whether the respondents owned the entire grassy strip or only part, and any misunderstanding on the part of the Original Tribunal, did not result in an error of law or fact. Accordingly, we are not satisfied that the new evidence is admissible.
Email by Mr Chowdhury
The appellant produced a series of emails between herself and an officer of City Services. The emails establish that the driveway was inspected by an officer of that directorate, Mr Chowdhury. After that inspection he sent an email to the appellant as follow:
I understand recent changes to the neighbouring block (block 20 section 55 Kaleen) causing water penetration to your carport and internal driveways. As I understand your neighbour has increased impervious surface, changed grading towards your block and didn't connect the area to the internal drainage system.
As discussed [City Services] is not the responsible authority to resolve issues within the block/between neighbours. Please contact Environment Planning and Sustainable Development Directorate to assist you in this regard.
This email is not a report that can be relied upon by the Appeal Tribunal. It is not in the form of an expert report prepared for a tribunal hearing. The Appeal Tribunal has no information as to the method of inspection; and the wording of the email makes it difficult to determine whether Mr Chowdhury is summarising what the appellant has told him or reaching a conclusion based on his inspection.
The Appeal Tribunal will admit the evidence of Mr Chowdhury, being his emails and the associated email chain. However, while the Appeal Tribunal had allowed it into evidence, the Appeal Tribunal placed no significant weight on this evidence.
Tax invoices from Armstrong Legal
These were not relevant to any matter in issue on appeal and were not admitted.
Errors of fact, law or discretionary errors
The application for appeal contained a list of errors of fact, law, or discretionary errors. The items were expanded upon in the appeal hearing. There was considerable overlap between the items listed. The items are dealt with in turn below.
That trespass should have been more ‘properly considered’ during the hearing: that the effect of the trespass on the appellant’s life was not properly considered
The appellant does not assert that the first respondent entered her property as a trespasser, but rather than he authorised another person to do so. Alternatively, she appears to assert that the respondent owed her a duty of care to prevent trespassers from entering upon her land.
During the appeal hearing, the appellant was not able to explain the legal or factual basis for her assertions that the first respondent had trespassed upon her property; and/or that had, in breach of a duty of care, allowed government workers to trespass upon her land. In relation to the latter, the appellant was not able to say what was the content of the asserted duty of care. The appellant was not able to say where in the law of trespass or negligence such a duty of care arose.
It is evident from the transcript that the Original Tribunal experienced the same problem. The appellant asserted that the key issue was whether the ACT Government representatives were attending to an emergency, and therefore could enter the appellant’s property without giving her written notice and/or in her absence. The appellant asserted that the first respondent had a duty to ascertain whether there was ‘an emergency’ and consequently whether the ACT Government representatives were acting correctly or within their power.
The appellant did not, either in the original hearing or the appeal hearing, provide submissions or evidence that established any wrongdoing on the part of the respondents and nor could she identify any legal basis for the alleged duty.
The original application did not seek any order for compensation for the adverse effects of the alleged trespass. In her written submission to the Original Tribunal the appellant stated:
I raise these concerns because I live alone, and I constantly worry about these past events. I have become fearful of what is going to happen next. I now feel insecure and am unable to freely enjoy living on my own property.
The appeal application, under the heading “orders sought if the appeal is successful”, stated:
acknowledgement should be made of the lasting harm that the trespass into my property has caused me, an apology given, and compensation for the ongoing trauma I have experienced as result of trespass into my property.
The appellant cannot, in an appeal, seek orders which were not sought in the original application. Given the findings of the Original Tribunal that the appellant had not established any act of trespass, or other wrongdoing, by the respondents, there was no need to consider the impact of the events upon the appellant. The Appeal Tribunal notes that the appellant provided no relevant reliable or probative evidence of the alleged ‘lasting harm’ or ‘trauma’.
However, even were the Tribunal able to make the orders sought by the appellant, it would not. However, there is simply no basis in law for such an assertion. There is no basis in law for the appellant’s arguments.
The falsity of the respondents’ statement that there was a stormwater emergency was not examined
As outlined above, the appellant’s case placed a lot of emphasis on the argument that there was no stormwater emergency.
The question for the Appeal Tribunal is: should the Original Tribunal have addressed the question of whether there was, as matter of fact, a “stormwater emergency”.
The Appeal Tribunal notes that the evidence of the appellant and her witness Mr Gillespie was that the man in the appellant’s backyard on 3 October 2019 had said he was there to deal with an emergency.
The appellant was not able to clearly explain why this was an issue which should be considered by the tribunal. It appears from her evidence and material submitted that the appellant believes that if she can establish that there was no emergency on 3 October 2019, that this somehow establishes that the first respondent unlawfully allowed the workers employed by the ACT Government onto her property. This is not the case. Even if the appellant was able to establish, as a matter of fact, that there was no emergency, this still would provide no basis in law for her assertion that the respondents allowed the worker to enter the appellant’s property in breached a duty of care to her or amounted to a trespass or a conspiracy to trespass by the first respondent.
In her submission to the tribunal prepared for the original hearing, the appellant stated:
The second instance was one of trespass. When I came home at lunchtime on 3rd October 2019, after being away for a couple of hours walking my dog, I was astounded and frightened to find a man standing in the middle of my backyard looking at the back of my house. He appeared surprised to see me. He said he was on my property deal with the storm water emergency. There was clearly no storm water emergency as the weather was warm and dry in Canberra had been in drought for a significant time. There was another man standing on Marc’s side of the fence and I observed that Marc was standing further away, apparently listening but Marc took no part in the conversation.
In a written statement dated 18 June 2021, Mr Gillespie stated that he was present when the appellant returned to her home on 3 October 2019 and found a man standing in her backyard. At paragraph 4 of that statement he said the man: “subsequently claimed that he was there to inspect the stormwater pipe because of a stormwater emergency.”
In the appeal hearing both the appellant and Mr Gillespie gave different evidence from that in their written statements and oral evidence to the Original Tribunal. The appellant said: “The emergency is only respondents say that the - no more anymore in the government say that is urgent or that is emergency.” (errors in original) When questioned by the Appeal Tribunal about the written statement the appellant said she did not remember the man in her backyard saying this. Mr Gillespie stated in the appeal hearing that his written statement was not correct.
The respondents in the original hearing and again in the appeal hearing gave a clear explanation of what had happened on 3 October 2019. The evidence of the email correspondence between the parties and the ACT Government is that the ACT Government was acting lawfully within the provisions of the Utilities Act2000. The Appeal Tribunal finds that the appellant’s arguments are misconceived and provide no basis for a finding that there was no stormwater emergency within the provisions of the Utility Act; or that the respondents were untruthful in their evidence as to their actions.
The appellant’s contention that the first respondent knew the person who entered the appellants backyard on 3 October 2019, or that he had received special treatment by officers of the ACT Government are fanciful, offensive and not supported by the evidence.
Bias or discretionary error arising from member’s comment about false evidence
This ground appears in the “List of errors of fact, law, or discretionary errors”, but is not addressed in written submissions, submissions made in the appeal hearing or evidence provided by the appellant. The appellant made no submissions as to how a bias or discretionary error arose or could be demonstrated nor how it affected the outcome of the original hearing.
In submissions made during the appeal hearing, the appellant argued that the evidence of the builder, who undertook the renovations to the respondents’ premises and who oversaw the construction of the driveway should not have been accepted by the Original Tribunal. We have carefully reviewed the comments of the senior member, and note that she expressed some concerns that the builder was not an “independent witness”, but observed that:
I understand he is not an independent expert because he was engaged by the respondents, but there is no assumption that I can draw that he is unreliable, and Ms Zeng had an opportunity to cross-examine him and chose not to do so.
So, we have his evidence. It would be ideal if we had an independent expert to address what were really technical issues which were in dispute about how the water flowed off the new driveway and whether that constituted a flooding risk. But, unfortunately, we did not have any other expert evidence and so really the primary evidence before me were the photographs that the parties had submitted. And I could see from those photographs that there was, indeed, a drain. I did take into account Mr Connor's evidence but, as I say, it would be preferable to have had an independent expert
The Original Tribunal acknowledged the difficulties of relying upon the builder’s evidence and explained why she did and to what extent. We see no error in this approach.
In any case, the appellant provided no expert evidence at all with regards to the construction of the driveway or the flow of water over or from the driveway to either the original or appeal hearing. The appellant has the task of providing relevant, reliable and probative evidence to fulfill the onus of proof of each of the matters she asserts. She has failed to do so. Thus, even should the Appeal Tribunal reject the evidence of the builder accepted by the Original Tribunal, the appellant has not satisfied the onus of proof because she provided no alternative.
The issue of the driveway as an ongoing nuisance should have been further considered - Need for the driveway to be approved
The appellant provided no new evidence in relation to water runoff from the driveway creating a nuisance, and no evidence as to whether there was a requirement for the driveway to be approved by the relevant government department. The appellant made no submissions in relation to the factual or legal basis for her apparent assertion that a failure to approve the driveway automatically established that the runoff was a nuisance. Once again, the Appeal Tribunal notes that the onus is on the appellant to provide the evidence to establish the matter she asserts on the balance of probabilities.
Further, as was pointed out by the Original Tribunal, to the extent that the appellant considers that the driveway may require building or development approval, that is a matter she can pursue through ACTPLA. It is not a matter that the tribunal can properly consider in a civil proceeding.
The confusion about the appellant withdrawing the claim in relation to trespass in October 2016
The appellant made submissions that the Original Tribunal had made an error in determining that the appellant had withdrawn that part of her original application which related to the trespass alleged to have occurred in October 2016. The appellant requested that the Appeal Tribunal “investigate this further”.
We turn first to the transcript of the original hearing and reproduce in its entirety the relevant exchange between the Original Tribunal and the appellant:
SM: So I turned to that first situation October that Ms Zeng refers to and that is something that happened in September or October 2016 Ms Zeng said that while she was on holidays the respondents cut a channel in the concrete that was surrounding her garage, so between - close to their common fence. They cut a channel through that for the purpose of redirecting runoff and that, as a consequence, muddy water flowed over her property.
Ms Zeng: yes
SM: I am just checking back with Ms Zeng to make sure that I have summed up what she is saying happened
Ms Zeng: you want me to describe?
SM: I am just checking. Is that correct? Have I understood correctly what you are saying, that the respondent cut a channel in that concrete?
Ms Zeng: Yes. Yes, in the corner of my garage. That is behind the - between the garage and their - because my garage is quite close to the boundary, there's only not much room. And before all the fence was broken and we ask them for permission because we wanted to improve on this. Because the garage is quite low, the water always running into it- into the garage. So, we wanted to put on there concrete against the garage to cover a bit over it so the water not run into - that corner between - the other side is their corner - their garage. So two garages between all that area. Between the two garages was very low. That is because the water running from the neighbours’ backyard, come in between the garage.
SM: Alright. Can I ask you, Ms Zeng - this was something that was highlighted in your original application, but not so much in subsequent materials. I just wanted to check that it is still a ground that you are pursuing, or that you are seeking a remedy in relation to. Is that correct?
Ms Zeng: Sorry, I haven't got this one-this question. What …
SM: The question is-and perhaps[the translator] can help me here. The question is that although this incident features very much in your application, there is not a lot in the subsequent materials in relation to it. I am just checking that it is something that you are still seeking a remedy in relation to.
Interpreter: Well, the concrete is in my side, so I just fix it so I can't say there are any possibilities for any remedy at this moment.
SM: OK. So you are not asking the tribunal
Interpreter: I want to fix it.
SM …to make an order in relation to that?
Ms Zeng: no. This is just the fact that in the past I described in this case. But inside that they cut a bit channel and channel was on my side. Because before the fence was broken. After that I build a new fence, so this is -I fix because on my side, dug myself.
SM: OK. So you are not pursuing that matter at this point?
Ms Zeng: No, just for the fact that in the past I said that. But I don't think any can't be fixed. I already fixed, I just put them back. It's all good. Yes.
SM: OK.
Ms Zeng: Yes.
SM: Alright. Well if you are happy to move on, I will do so, Ms Zeng, if it's not something that you - you say you have fixed it and if it's not something you want to pursue, that is fine, I can move on.
Ms Zeng: OK, thanks.
It is evident from the Original Tribunal’s reasons that the Original Tribunal had formed the view that the appellant was not pressing the issue of the channel cut between the garages, and consequently it was not dealt with during the hearing. We have formed the view that some confusion has arisen from the use of the word ‘remedy’ and accept that the appellant may not have intended that the matter not be dealt with.
Accordingly, we have considered the evidence provided in relation to this issue by the applicant/appellant in both the original application and the appeal.
The original application in a written submission by the appellant states the first incident:
occurred at some time during a period when I was away on holiday for three weeks in October 2016. When I returned home, I found that a channel had been cut into my property through the concrete which surrounds my garage. The purpose of this activity was apparent. It was to allow water to flow from his property into mine. This was very clear - given that the concrete surface on my property was stained by muddy water deposits which had entered my property through the channel he had cut.
A written statement by Mr Gillespie dated 18 June 2021, states at paragraph 2:
the channel cut into the concrete besides Su’s garage by her neighbour directs rainwater runoff from the neighbour’s place directly on Su’s property. It was done while Su was away for several weeks in 2016 and discovered on return home.
In their written response, the respondents stated:
in September 2016, Paul Gillespie and Su Zeng both resided at 53 Wakool Ct Kaleen. Prior to them leaving for a holiday in October 2016, they spent several hours into the night on our property (55 Wakool Ct Kaleen) digging a trench between our garages and laying a section of concrete along the edge of their garage.
We verbally agreed to this temporary access to our property on the condition that works along the boundary did not block the natural flow of drainage and stormwater across the property between garages, and that it would be left tidy.
However, Paul and Su laid concrete and dug up soil which blocked the path that previously allowed water to drain away between the two garages. Paul and Su then left for the holiday.
The work performed interfered with the natural drainage and flow of stormwater over the existing topography. The soil left behind also made the area a boggy mess which took several days to dry out.
I took steps to rectify the immediate situation and spent several days clearing the excess mud and relaying new decorative stone mulch to restore the area.
When Paul and Su return from their holiday, I spoke with Paul and discussed the exceptional rain event and explained the rectification work to address this issue. At the time of discussion, Paul did not raise any concerns with me.
Noting that since this event back in 2016, Paul and Su have conducted more concrete works on the boundary between the two properties.
The respondents provided photographic evidence to support their written submissions. The respondents gave evidence that the concreting work done by the appellant prior to her holiday in late 2019 extended into the respondents’ property and that only that concrete which was in their property was removed by them. The respondent denied any act of trespass and stated that he had cut a channel to alter the water flow and he denied that he had accessed the appellant’s property.
The photographic evidence did not support the contentions of the appellant.
The materials provided by the appellant in accordance with the directions made on 8 November 2021contained further written submissions restating the fact that the respondents had cut a channel in the concrete between the two garages, that they had done so in order to alter the water flow and that the act of cutting channel into the concrete constituted an act of trespass. The appellant also reproduced the respondents’ photographic evidence.
The appellant made no submissions relating to the law of trespass.
The evidence provided by the appellant, both to the Original Tribunal and the Appeal Tribunal, even taken at its highest, does not establish, on the balance of probabilities that the respondents had entered the appellants land when adjusting the concreting work performed by the appellant. The appellant could not have succeeded on this ground. Consequently, the failure by the Original Tribunal to consider this issue had not resulted in an erroneous conclusion.
The appellant was not given a chance to conclude her case
In her written submissions for this appeal the appellant made the following points:
(a)The email from the ACAT had specified that a whole day was set aside for the hearing and the appellant would have “plenty of time to present the details of my case” – the email was not produced by the appellant.
(b)The Tribunal member rushed the process and finished the hearing abruptly.
(c)The appellant was not given an opportunity to read a written summary of her case, which she had prepared for the hearing.
The transcript of the original hearing shows that at approximately 12:30pm the following exchange took place:
Senior Member: Look, is there anything else that either of you would like to say on this final issue? If not, then what I might do is I will pause for maybe 10 minutes while I consider my decision. So is there anything else you would like to say by way of summing up?
Ms Zeng?
Ms Zeng: will you -will you, needless to say as you know, as my English is not my first language. I probably – everything I do now, what I-I probably say something you don’t understand, so if you will - have you read this?
Senior Member:
Yes, I have. I have read the file. Ms Zeng.
Ms Zeng: okay, thank you.
The senior member then indicated that “at a quarter to I will come back and I will deliver a decision”. The matter was adjourned at 12:33pm. The matter resumed at 12:44pm and the senior member delivered her decision with brief reasons.
We accept that there may have been some confusion on the appellant’s part as to how long the hearing runs for.
Nonetheless, it is clear from the transcript that the process followed by the senior member was explained to the parties and the parties were asked whether they had anything further to say by way of summing up. The appellant has not made out this part of the appeal.
Final observations
The appellant and her support person appear to have misunderstood the role of the tribunal.
This matter was, appropriately, brought in the tribunal’s civil dispute jurisdiction. Civil disputes are actions brought against persons to remedy a private wrong. In deciding civil claims, the tribunal exercises the same jurisdiction and powers as the Magistrates Court sitting in its civil jurisdiction,[7] and while it takes a flexible approach to process,[8] it must still act in a way that is logically probative.[9] The substantive legal elements of each cause of action must be addressed in a tribunal in the same way that they must in a Court.
[7] ACT Civil and Administrative Tribunal Act 2008 section 22
[8] Eg. ACAT Act section 8
[9] Sarbandi v Sharif [2017] ACAT 57 at 16 citing Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 at [97]
In any civil claim, the applicant/appellant bears the onus of proof. The means that the appellant had to prove her case on the ‘balance of probabilities’ – and to do this she needed to provide relevant, reliable and probative evidence in relation to each of the issues raised. It is not the role of the tribunal to conduct investigations to establish the evidence which ought properly to have been provided by the appellant. Indeed, the tribunal would fall into error and if it did so, and even more so on appeal. The respondents were under no obligation to ‘disprove’ assertions that were not established by evidence.
Additionally, it is for the appellant to make out how the law should be applied to the alleged facts. While the tribunal can provide procedural guidance to parties and may, in a practical sense, provide procedural assistance to the parties to address the elements of a cause of action, the tribunal cannot assist them to make out a legal case where they have not articulated one.
Hence, while the Tribunal can empathise with the appellant’s distress at returning home to find a strange man in her yard, it cannot impose upon a neighbour an obligation to prevent that danger where the appellant has failed to articulate the basis for any such obligation in law. The Tribunal can only make decisions that are within its jurisdiction and based on the law and the evidence. The appellant has failed to make such a case, either at first instance or on appeal.
Final matters
The respondents have asked for an order under section 32(2)(c) of the ACAT Act that the appellant be directed to not to make a subsequent application.
In order to make such an order, the Tribunal would need to be satisfied that:
This section applies if the tribunal considers that an application, or part of an application is––
(a) frivolous or vexatious; or
(b) lacking in substance; or
(c) otherwise an abuse of process; or
(d) made by a person who has been dealt with by a court or tribunal in Australia as frivolous or vexatious.
It may be that the appellant’s case was lacking in substance, in the sense that it was doomed to fail from the outset due to lack of evidence. However, we are not convinced it is necessary to make an order.
Trespass claims 1 and 2 relate to specified incidents on specific dates. In our view, these claims have now been finally determined. The principle of res judicata prohibits a party from bringing the same action a second time. Issue estoppel prevents a “state of law or fact” which has been determined in previous proceedings from being re-agitated in later proceedings.
If the driveway causes excess runoff that is a different issue. The appellant is entitled to bring an application in respect of any new cause of action in respect of any nuisance that has arisen from changed circumstances, but would of course be required to support such a claim with cogent evidence, lest it be struck out at an early stage.
Conclusion
We appreciate that the appellant is highly distressed, particularly in relation to the events surrounding the second trespass claim. However, none of the events give rise to a cause of action against the respondents. Moreover, the appellant has failed to identify any material error of fact or law by the Original Tribunal.
Accordingly, the Original Tribunal’s orders from 27 September 2021 are confirmed and the appeal is dismissed.
………………………………..
Presidential Member H Robinson
For & on behalf of the Tribunal
| Date(s) of hearing: | 9 February 2022 |
| Appellant: | In person |
| Respondents: | In person |
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