RUPERT WYNESS v JAMES ROENNFELDT [2023] SASCA 77

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE PARKER) [2022] SASC 95 First Applicant: RUPERT WYNESS Counsel: MR E BELPERIO - Solicitor: WEBSTERS LAWYERS Second Applicant: ABBEY WYNESS Counsel: MR E BELPERIO - Solicitor: WEBSTERS LAWYERS First Respondent: JAMES ROENNFELDT Counsel: MR A LAZAREVICH - Solicitor: MEISTER LEGAL Second Respondent: DIANNE ROENNFELDT Counsel: MR A LAZAREVICH - Solicitor: MEISTER LEGAL Hearing Date/s: 21/04/2023 File No/s: CIV-23-003136 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. WYNESS v ROENNFELDT [2023] SASCA 77 Judgment of the Court of Appeal (The Honourable Acting Chief Justice Livesey and the Honourable Justice Bleby) 13 July 2023 APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT - GENERALLY REAL PROPERTY - BOUNDARIES OF LAND AND FENCING - FENCES AND FENCING - QUALITY OF FENCE This is an application for leave to appeal from a decision of a single judge, on appeal from the Magistrates Court of South Australia. The parties are neighbours whose properties abut at their rear. Each made extensive aesthetic improvements to their side of the fence. The applicants also built raised wooden decking and a privacy screen separate to the fence, but with the effect of raising its height. Dissatisfied with the effect of the screen, the respondents obtained development approval to increase the height of the fence to conceal it. The appellants, dissatisfied with the effect of the screen, obtained development approval to increase the height of the fence to conceal it. At some point thereafter, the fence began to deflect towards the respondents’ property. The applicants instituted proceedings in negligence in the Magistrates Court. The respondents counterclaimed. Both the applicants and respondents adduced expert engineering evidence. The magistrate directed that the experts prepare a joint report. The experts disagreed in significant respects but agreed that there was a deflection in the fence as described in the joint report. The Magistrate dismissed the action in negligence and also the counterclaim, finding that neither party was at fault. The proceedings were also brought under the Fences Act 1975 (SA). The magistrate found that the fence was not an adequate fence within the meaning of s 12 of that Act. The magistrate, noting the issues of access to the fence as well as the costs of each proposal, agreed with Mr Deek, the -- 1 of 19 -- applicants’ expert, that the rectification proposal was demonstrably inadequate and ordered that a new fence be constructed, with the cost to be borne equally by the parties. The respondents appealed against this decision on the basis that the magistrate failed to give adequate reasons for her decision; should have found that the rectification proposal was feasible and a more desirable solution; erred by finding that the new fence was an appropriate fence; and erred by concluding that underpinning could not be ordered. On appeal, the parties agreed that the matter should be disposed of in the Supreme Court upon the hearing of further evidence from the experts, Mr Deek and Mr Magryn. The appeal judge upheld the appeal on all grounds in the Notice of Appeal, bar Ground 6. He ordered that the the parties were to take all necessary steps to ensure that the fence between their respective properties was remediated as soon as is reasonably practicable in accordance with the Scope of Works and associated documents comprising the proposal numbered 16300 prepared by Magryn Engineering Consultants dated May 2020 save and except that: a. The five new footings are to be excavated to a depth of 1.65 m rather than 1.5m as presently specified; and b. Galvanised steel beams with equivalent performance characteristics are to be substituted for the presently specified 90 x 45 MGP12 beams. The costs were to be borne equally by both parties. The applicants now seek an extension of time and leave to appeal on the following grounds: 1. In circumstances where, since the delivery of the judgment of the Honourable Justice Parker in [2022] SASC 95: a. Complete Underpinning have declined to perform the works as ordered; and b. No other contractor has indicated a preparedness to perform the works as ordered other than for more than the sum quoted by Complete Underpinning; the Honourable Justice Parker erred at [150]-[152] in finding that there was no substance to the concern of lack of expertise of fencing contractors to carry out the proposed work and that the cost of the proposed work would be substantially less than the total cost of installation of a New Good Neighbour Colorbond fence. 2. In circumstances where, since the delivery of the judgment of the Honourable Justice Parker in [2022] SASC 95, the expert for the now Respondent has proposed a scope of works which differs from the works as ordered, the Honourable Justice Parker erred at [137] in preferring the proposal put forward by the expert for the now Respondent. Held (by the Court) refusing leave to appeal: 1. Having regard to the nature of the evaluative decision under s 12 of the Fences Act, and the relatively poor prospects of the further evidence being admitted on appeal, the applicants have not established that the decision is attended with sufficient doubt to warrant its reconsideration on appeal. 2. A number of the issues could have been agitated before the judge or could be addressed under the liberty granted. 3. The appeal does not raise an issue of principle or general importance. CDJ v VAJ (1998) 197 CLR 172; Coulton v Holcombe (1986) 162 CLR 1; D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; Gallagher v The Queen (1986) 160 CLR 392; Mickelberg v The Queen (1989) 167 CLR 259; M, K v Chief Executive of the Department for Child Protection -- 2 of 19 -- [2021] SASCA 27; Orr v Holmes (1948) 76 CLR 632; O'Brien v Komesaroff (1982) 150 CLR 310; P J Nash Pty Ltd v Food and Beverage Australia Limited [2021] SASCA 86; Ratten v The Queen (1974) 131 CLR 510; Roennfeldt & Anor v Wyness & Anor [2022] SASC 95; Southern Wire v Clover Communications [2023] SASCA 18; Steicke v Pederick (2019) 134 SASR 114; Sunlight Nominees Pty Ltd v Zotti and Zotti [2019] SASCFC 11; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan and Meakes (1931) 46 CLR 73; Viscariello v Livesey [2013] SASC 99; Wyness v Roennfeldt [2021] SAMC 59, considered. -- 3 of 19 -- -- 4 of 19 -- WYNESS v ROENNFELDT [2023] SASCA 77 Court of Appeal – Civil: Livesey A/CJ and Bleby JA 1 THE COURT: This is an application for leave to appeal from a decision of a single judge, on appeal from the Magistrates Court of South Australia. It concerns a fencing dispute. The respondents in the appeal before the primary judge are the applicants in the present application and the appellants in that appeal are now the respondents. The primary judge conveniently summarised the background to the litigation as follows:1 The appellants [now the respondents], Mr and Mrs Roennfeldt, own and live in a property at Marlborough Street, Brighton. The respondents [now the applicants], Mr and Mrs Wyness, own and live in a neighbouring property located in Seaview Terrace, Brighton. The respondents have resided in their property since 2010. The appellants bought their property in 2011 and subsequently erected a new home on the land. That was completed in early 2015. In April 2015, the parties agreed to construct a new Good Neighbour Colorbond boundary fence between their properties. The fence was installed by a contractor and consisted of blue board attached to a metal framework, secured in concrete footings. Soon thereafter, the appellants rendered and painted the blue board on their side of the fence. The respondents removed the blue board from their side and replaced it with a foam material that was subsequently rendered. The respondents also installed wooden decking between their newly built house and the fence. A spa bath was set into the decking and a brick planter box built adjacent to the fence. The respondents also erected a privacy screen consisting of white metal slats supported on a framework separate from the fence but immediately adjacent to it. The purpose of the screen was to effectively increase the height of the fence as the installation of the decking had, in practice, lowered the fence from the respondents’ side. For that reason, they were concerned about the safety of their children. The appellants were dissatisfied with the effect of the privacy screen on the amenity of their property. They were concerned that there was considerable reflected sunlight from the screen that restricted their use of the garden at certain times of the day. They also perceived that Mr Wyness would observe them through the slats in the privacy screen. For those reasons, the appellants sought and obtained development approval from the City of Holdfast Bay to increase the height of the fence to 2.5 m so as to shield the privacy screen installed by the respondents. At some point thereafter it became apparent that the fence was deflecting eastward away from the land of the respondents towards the land of the appellants. The respondents instituted proceedings in negligence in the Magistrates Court in which they pleaded, amongst other matters, that the appellants had acted negligently by providing incorrect details to the Council about the fence footings when they sought approval to increase the height of the fence. The appellants denied that they had been negligent. They contended that the fence was stable. If there was any instability it had been caused by the respondents 1 [2022] SASC 95 at [4]-[10]. -- 5 of 19 -- [2023] SASCA 77 The Court 2 negligently modifying their side of the fence and undertaking other works on their property. On that basis, the appellants sought remedies pursuant to a counterclaim. The Magistrate dismissed the action in negligence and also the counterclaim. Those decisions have not been appealed. In essence, the Magistrate found that a contractor was responsible for the defective footings and neither party was aware of that defect. The evidence also did not establish that the actions of the appellants in relation to the increased height of the fence or its surface treatment was negligent. The respondents had also not negligently caused any instability in the fence. 2 The proceedings were also brought under the Fences Act 1975 (SA). The magistrate’s determination of the matter under that Act became the subject of the respondents’ appeal to the single judge and, now, the application for leave to appeal before this Court. 3 Both the applicants and respondents adduced expert engineering evidence. The magistrate directed that the experts prepare a joint report. The experts disagreed in significant respects but agreed that there was a deflection in the fence as described in the joint report. The magistrate found that the fence was not an adequate fence within the meaning of s 12 of the Fences Act. The experts agreed that the footings had not been constructed in accordance with the contractor’s quote. Some of the footings were 150-200 mm in diameter, rather than the quoted 300 mm. The footings likely had not been installed to the quoted dept of 600-700 mm. The experts agreed that the footings were inadequate. The magistrate was unable to reach any conclusions about the cause of the fence’s current instability but considered it was sufficient for the purpose of the proceedings to find that the footings were inadequate. 4 The experts gave competing evidence as to what was required to rectify the inadequate fence. Mr Deek was the expert called by the applicants. His view, for which the applicants contended, was that the fence should be removed and replaced. The applicants had a quote of $21,994 for the cost of removing and replacing the fence with one of the same or a similar construction of 1.8 m in height, and $25,974 for a fence of that type but 2.4 m in height. The quote for a 1.8 m high Good Neighbour Colorbond fence, as an alternative, was $1,650, plus $7,250 for removal of the existing fence on the side of the privacy screen facing the respondents’ property. 5 Mr Magryn was called by the respondents. He preferred a course by which the faulty fence would be rectified. As the primary judge characterised his evidence:2 Under the alternative rectification proposal advanced by Mr Magryn, five alternate posts would be remediated with beams installed along the top of the original fence so as to transfer the load from the tops of the un-remediated posts to the remediated posts. The selected posts would be remediated by welding lengths of steel to them and then set in new concrete footings. This would require that the slat sections of the respondents’ privacy screen and also their decking would need to be temporarily removed to enable the work to 2 [2022] SASC 95 at [16]. -- 6 of 19 -- [2023] SASCA 77 The Court 3 be performed. The estimated cost was said to be $16,000 (inclusive of GST) although the Magistrate noted that it was unclear whether this price included the cost of the decking removal. The respondents had obtained a quote of $4,500 for the work involved in lifting the decking and the pool fence. 6 The magistrate determined the matter in favour of the alternative proposal by the applicants, that is, that the fence be removed and a Colorbond fence with a height of 1.85 m on the applicants’ side (to accommodate the raised timber deck) be installed in its place:3 The current fence being inadequate, the matter is to be determined by what is an ‘adequate fence’ for the purposes of the Fences Act. An adequate fence is a fence that conforms with general standards of good fencing existing in the local area, taking into consideration how the parties use their land, and the purpose for which the fence is sought. A Colorbond ‘Good Neighbour’ fence is an adequate fence in this case. Indeed, that is what the parties had initially installed, albeit that they also agreed that it would be clad. The fencing work in the form of rectification proposed by the respondents would result in a fence ‘of better quality than an adequate fence’. In view of their opposition, and as rectification would require access to the applicants’ property and deconstruction of the deck, I consider there is no basis upon which I may or ought to compel the applicants to participate in a process that has that result. Mr Magryn does not suggest that the proposed remediation must be done to ensure that any fence constructed on the site is adequate and safe. He offered that remediation proposal in the context of the respondents’ objection to the current fence being removed, and to assist the Court. Indeed, with respect, I agree with Mr Deek that, in view of the history of the matter and for the reasons he has expressed, any rectification proposal that involves adjustments or attachments to existing fence structures which are demonstrably inadequate is not a suitable course. (Footnotes omitted) 7 The magistrate noted that the respondents were entitled to choose a fence of better quality, but that in the absence of agreement, the applicants would be only liable to contribute half the minimum cost of erecting an adequate fence. The parties would be able to improve their own side of the fence, provided that it did not result in damage. The fence was to be freestanding. 8 The respondents appealed. The appeal judge described the complaints on appeal as follows:4 In broad terms, the appellants raise the following four matters. First, they contend that the Magistrate failed to give adequate reasons for her decision. Secondly, the appellants contend that the Magistrate should have found that underpinning of the fence was feasible and a more desirable solution from an engineering perspective as opposed to the construction of a new fence. Thirdly, they contend that the Magistrate erred by finding that a Good Neighbour Colorbond fence of 1.85 m in height was an appropriate fence. Fourthly, the appellants contend that the Magistrate erred by concluding that underpinning could not be ordered. 3 [2021] SAMC 59 at [30]. 4 [2022] SASC 95 at [22]. -- 7 of 19 -- [2023] SASCA 77 The Court 4 9 The appeal judge concluded that in articulating the reasoning for her conclusions as set out above, the magistrate did not refer to several countervailing conclusions and erred by not exposing her reasoning on critical issues that were central elements in the dispute.5 Those countervailing considerations included the fact that the installation of a new Good Neighbour Colorbond fence would be more expensive than a revised rectification proposal of Mr Magryn, and that installation from the respondents’ side would cause them disruption, destroy their plants and may damage their garden wall and agricultural drain. It would also result in a less attractive fence.6 On this account, he allowed the appeal on the grounds asserting a failure to give adequate reasons. 10 The judge also found that the magistrate erred in holding that she could not order the deconstruction of the applicants’ deck, so as to enable the proposed remediation work. He found that ss 12(2)(a) and (b) of the Fences Act specifically empowered the Court to make orders of that nature.7 11 The judge also concluded that the magistrate had erred in preferring the evidence of Mr Deek without Mr Deek having given any evidence on Mr Magryn’s revised proposal.8 In this regard, the judge explained:9 Although her Honour was persuaded by the opinion of Mr Deek, she did not explain why she accepted that any rectification proposal that involved adjustment of, or attachment to, existing inadequate structures was not an acceptable solution. Mr Magryn acknowledged that the first proposal would not provide an appropriate solution upon becoming aware of the inadequacy of the existing posts and foundations. However, his revised proposal, which was supported by fresh engineering calculations and structural diagrams, had been developed so as to address the deficiencies in the existing posts and foundations. When Mr Magryn was recalled before the Magistrate, he gave evidence about his revised proposal and the supporting documentation was admitted into evidence. He also explained why he did not consider attachment of the fence to the third-party garage wall to be problematic: it is done regularly in Adelaide; and, if the garage were to be removed, the end of the fence could be attached to a post. The criticism directed by Mr Deek at Mr Magryn’s proposal related solely to the first proposal which had been abandoned by Mr Magryn. Mr Deek had not engaged in any way with Mr Magryn’s revised proposal, and the Magistrate had heard no evidence from him on that topic. 12 The question then arose whether the judge should remit the matter or take further evidence from the experts and determine the matter himself. He adopted the course preferred by both parties, which was for the experts to give further evidence and for him to make final orders. On his consideration of the evidence at trial, the further evidence on appeal and quotations from contractors received as further evidence on appeal, the judge formed the following conclusions: 5 [2022] SASC 95 at [96]-[98]. 6 [2022] SASC 95 at [97]. 7 [2022] SASC 95 at [99]. 8 [2022] SASC 95 at [110]. 9 [2022] SASC 95 at [107]-[108]. -- 8 of 19 -- [2023] SASCA 77 The Court 5 • the judge found the evidence of Mr Magryn to be more persuasive than that of Mr Deek. Mr Magryn had thought through the issues and applied his skills to reach a practicable solution. Mr Deek had, on considering Mr Magryn’s alternative proposal, conceded that the principal barriers had been overcome and relied mostly on a series of minor objections as a basis of opposition to the revised rectification proposal;10 • Mr Deek’s evidence did not support the negative findings by the magistrate in relation to ‘incorporation or attachment to existing, inadequate elements’. Mr Deek agreed that the revised proposal effectively addressed his concern about the inadequacy of the existing piers and posts;11 • connection of the remediated fence to a neighbour’s brick garage at its northern end and to another neighbour’s fence at the southern end did not provide a basis to reject the proposed remediation;12 • Mr Deek’s concern about access through the neighbour’s property was met by s 18 of the Fences Act;13 • Mr Deek’s evidence about difficulty in gaining access to bore some of the five holes required for the footings raised a practical problem of prime concern. In this regard, the judge concluded:14 I accept Mr Magryn’s evidence that access can be gained to drill five holes with the machine proposed to be used by Complete Underpinning. The holes will be selected in accordance with accessibility requirements bearing in mind the presence of the respondents’ planter box, shed and spa. So as to gain access, it may be necessary to remove part of the surface timbers and even some of the underlying structure of the respondents’ deck. I do not consider that interference with the deck can be avoided given the closeness of the deck to the boundary. Given the clear cost advantage in adopting Mr Magryn’s remediation proposal (see [152] below), and for this reason the fact that the installation of a Good Neighbour Colorbond fence would not satisfy s 12(7) for the reasons explained at [91], this is the only option available to the Court. However, I will order that as far as is practicable the deck must be returned to its pre-existing condition. • galvanised steel could be used to remove the risk of rotting of timber cross beams over years;15 • Mr Deek overstated the risk of damage to the fence in propping it up during remediation;16 10 [2022] SASC 95 at [137]. 11 [2022] SASC 95 at [138]. 12 [2022] SASC 95 at [141]. 13 [2022] SASC 95 at [142]. 14 [2022] SASC 95 at [144]-[145]. 15 [2022] SASC 95 at [146]. 16 [2022] SASC 95 at [148]. -- 9 of 19 -- [2023] SASCA 77 The Court 6 • only Building Rules consent would be required, not Development Plan consent;17 • importantly for present purposes, the judge did not consider there to be any substance in Mr Deek’s concern about a lack of expertise of fencing contractors to carry out the revised remediation works. Mr Magryn did not propose to use an ordinary fencing contractor. He was confident, based on his experience, that Complete Underpinning would be able to perform the work;18 and • the aggregate cost of Mr Deek’s proposal based on the quotes provided was at least $22,712. That did not include the cost of replacing the respondents’ plants or the cost of concrete sleepers. It could be expected that the costs would have increased since the quotes in June 2021. As to Mr Magryn’s proposal, it was probable that the price of $16,000 with 10 per cent allowance for unforeseen contingencies will have increased also. It would also be increased by the use of galvanised steel rather than timber for the cross members, and the greater depth required of five new post holes and footings. However, the judge concluded that the cost of the proposed remediation would still be substantially les than the total cost of installation of a new Good Neighbour Colorbond fence. 13 On the basis of these matters, the judge found that the magistrate should have found that the underpinning proposed by Mr Magryn was possible and the preferable solution. He allowed the appeal on this basis also. He made orders in the following terms: 1. I uphold Grounds 1(a), 1(b), 2, 3, 4, 5(a), 5(b), 7(a) and 7(b) in the Notice of Appeal. 2. I dismiss Ground 6 in the Notice of Appeal. 3. The parties are to take all necessary steps to ensure that the fence between their respective properties is remediated as soon as is reasonably practicable in accordance with the Scope of Works and associated documents comprising the proposal numbered 16300 prepared by Magryn Engineering Consultants dated May 2020 save and except that: (a) The five new footings are to be excavated to a depth of 1.65 m rather than 1.5m as presently specified; and (b) Galvanised steel beams with equivalent performance characteristics are to be substituted for the presently specified 90 x 45 MGP12 beams. 4. The parties are each to take such steps as may be necessary to grant access between the hours of 9am to 6pm on Monday to Friday each week to Complete Underpinning and its members, employees and contractors, including any vehicle or equipment, 17 [2022] SASC 95 at [149]. 18 [2022] SASC 95 at [150]. -- 10 of 19 -- [2023] SASCA 77 The Court 7 that is reasonably required for the purposes of carrying out the work referred to in Order 3. 5. The costs of complying with Order 3 are to be borne equally by the parties. 6. The parties are at liberty to apply to the Court for any consequential or related orders. 7. I will hear the parties as to costs. The application for leave to appeal 14 The applicants filed a Notice of Appeal, which included an application for leave to appeal, on 20 March 2023. The Notice of Appeal is well out of time. The applicants seek an extension of time, for reasons that are bound up with the grounds of appeal. That is to say, the grounds of appeal rely on matters said to have arisen since the judgment on appeal. 15 The grounds of appeal are as follows: 1. In circumstances where, since the delivery of the judgment of the Honourable Justice Parker in [2022] SASC 95: a. Complete Underpinning have declined to perform the works as ordered; and b. No other contractor has indicated a preparedness to perform the works as ordered other than for more than the sum quoted by Complete Underpinning; the Honourable Justice Parker erred at [150]-[152] in finding that there was no substance to the concern of lack of expertise of fencing contractors to carry out the proposed work and that the cost of the proposed work would be substantially less than the total cost of installation of a New Good Neighbour Colorbond fence. 2. In circumstances where, since the delivery of the judgment of the Honourable Justice Parker in [2022] SASC 95, the expert for the now Respondent has proposed a scope of works which differs from the works as ordered, the Honourable Justice Parker erred at [137] in preferring the proposal put forward by the expert for the now Respondent. The evidence in support of the application 16 The applicants filed an 83-paragraph affidavit of Andrew Geoffrey Carpenter, solicitor for the applicants, on 14 March 2023. They have also filed affidavits of Mr Carpenter dated 11 April 2023 and 20 April 2023. 17 The applicants characterise the first affidavit as containing evidence they seek to adduce on appeal if they are granted leave to do so. The first part of this affidavit relevantly contains the following assertions, some of which are clearly on information and belief: • part of the appeal judge’s rationale for finding in favour of the respondents was that the cost of rectification was cheaper, in that Complete Underpinning provided a quotation of $18,800. Mr Carpenter is advised by the appellants -- 11 of 19 -- [2023] SASCA 77 The Court 8 that ‘a quotation to completely replace the fence was in the vicinity of $30,000 which sum included demolition costs’; • Mr Carpenter is advised by the appellants that Complete Underpinning did not inspect the property prior to providing the quotation. This appears to have been the subject of comment by Mr Deek at paragraph [13] of the joint report. Mr Carpenter then opines that the quote by Complete Underpinning ‘could be seen as misleading’; • Mr Magryn has been unable to secure a quotation from qualified trades to perform the works in accordance with the orders of the appeal judge. The only quotation received from trades who have viewed the site and can perform the works in accordance with Parker J’s orders comes to $38,434.00. Mr Carpenter then makes the submission that this ‘demonstrates that complete replacement on the fence is the most financially sound and viable option’; • Mr Carpenter has been advised by Mr Deek ‘and verily believe[s] to be true’ that the rectification of the fence is not a viable option and that complete removal is the only viable option. 18 It is necessary to make some preliminary observations. First, if Complete Underpinning did not inspect the property before providing a quotation, that is something that was apparently known by the applicants prior to the single judge appeal. That was available to be explored at trial. 19 Secondly, Mr Carpenter’s relaying of Mr Deek’s opinion cannot assist with the application for leave to appeal. It is a statement on information and belief of an opinion of an expert on the very subject of a matter that was tested at trial. 20 The next part of the affidavit, comprising paragraphs 17 to 66, is headed ‘Compliance with orders’. On Mr Carpenter’s evidence, following delivery of the judgment, he engaged with the solicitors for the respondents with a view to progressing the works in accordance with the Complete Underpinning quotation. Then on 12 November 2022, Mr Carpenter received correspondence form the respondents’ solicitors advising that Complete Underpinning had withdrawn their quotation. Mr Carpenter’s evidence then moves to a double hearsay account of what the applicants told him that Complete Underpinning told them as to the Scope of Works of which they had not previously been aware. 21 Mr Carpenter’s evidence is then that on 21 November 2022, he contacted a member of Complete Underpinning who told him that he was concerned about the applicants’ ‘demeanour’ and that if the job was not done to standard, he may be ‘called to court’. Complete Underpinning did not wish to work with the applicants. 22 On 7 December 2022, Mr Carpenter received a contract for the remedial works from the respondents. Mr Carpenter characterises the contract as including -- 12 of 19 -- [2023] SASCA 77 The Court 9 a scope of works ‘within which Mr Magryn, on 5 December 2022, unilaterally changed the posts to be upgraded without notification’. Mr Carpenter then expresses the opinion that ‘the new scope of works provided were inconsistent with the orders of Parker J’. This appears to be a reference to the fact that the new scope of works contemplates remediation of posts 3, 5, 7, 9 and 10, rather than 2, 4, 6, 8 and 10. The latter posts are those contemplated by the scope of works reference in Order 3 of the appeal judge, set out above. 23 Correspondence ensued to the effect that the applicants refused to agree to works that were not within the scope of works the subject of the order. The respondents took the position that the change in posts was within the intent of the order. It appears that Mr Magryn changed the selection of posts to be remediated because he had not been previously aware of the relative positions of the fence post, spa, deck, planter box and shed. 24 The applicants’ written submissions describe this failure as ‘extraordinary’, as whether the Magryn proposal could be constructed with minimal disturbance to the existing structures was a key issue at trial. Again, that may be so, but that was able to be explored at trial. However, the portion of Mr Magryn’s email responding to the query in the change in posts reads: It is only necessary to upgrade every second post along the fence, and provide support to the top of the other posts that have not been upgraded by use of a spanning top beam. I am now in a possession of a diagram from Mr Wyness that I did not have previously, which shows correctly the relative positions of the fence posts to the spa, deck, planter box and shed. This diagram shows that it is easier, cheaper and more practical to upgrade posts 3, 5, 7, 9 & 10 than 2, 4, 6, 8 & 10, as they are more accessible. Hence, I have changed the posts which are to be upgraded. I believe that this still meets the intent of the directions as set out by the Court. 25 Mr Carpenter then complains that no other quotes have been obtained and that the respondents’ solicitors have failed to provide the applicants with their communications with Mr Magryn in relation to the new quotation. The applicants submitted that ‘under the [Uniform Civil Rules 2020 (SA)] provision of such documents when requested ought to be uncontroversial’. However neither the correspondence nor the applicants’ written submissions identify the rule that requires such disclosure following judgment. 26 The applicants have also filed an Interlocutory Application within the present appeal proceedings, seeking orders under r 74.4(1) of the Uniform Civil Rules that the respondent disclose any and all communications that they, their solicitors or Counsel have had with Mr Magryn. 27 The second affidavit of Mr Carpenter, dated 11 April 2023, exhibits further correspondence by which the applicants have sought the respondents’ communications with Mr Magryn. Mr Carpenter’s third affidavit, dated 20 April 2023, exhibits voluminous material the respondents provided to the applicants in answer to their request. The applicants complain that this material is incomplete. -- 13 of 19 -- [2023] SASCA 77 The Court 10 28 In circumstances where the applicants have not yet been granted an extension of time, the utility of this Interlocutory Application would appear to be dependent on whether the applicants should be granted an extension of time and leave to appeal in the first instance. Indeed, the applicants’ written submissions do not prosecute this application, other than to complain that it is ‘extraordinary’ that the documents have not been provided. As already noted, the applicants make that complaint notwithstanding that their request concerns correspondence occurring after delivery of judgment on the single judge appeal. In any event, the Interlocutory Application can presently be put to one side. The basis on which leave is sought 29 In Southern Wire v Clover Communications, this Court observed:19 The question of whether to grant leave to appeal looks to the following considerations:20 a) whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal; b) whether the decision raises an issue of general principle or importance; and c) whether allowing the decision to stand would work a substantial injustice to the applicant. (Footnote in original) 30 These considerations must be applied against the backdrop of the jurisdiction that the Court from which leave is sought was exercising. This was an appeal to a single judge from a decision of a magistrate, exercising jurisdiction under s 12 of the Fences Act. Section 12 provides, in part: 12—Powers of court (1) Where any difference or dispute arises in relation to fencing work, or any liability arising under this Act, any person affected by the difference or dispute may by application to the court seek a determination of the matter. (2) Upon the hearing of an application under subsection (1) of this section the court may determine the matter in such manner as it considers just and may— (a) make any finding, determination or order in relation to the erection of a fence, the nature of the fence to be erected, the line of fence to be adopted and the amount of compensation (if any) to be paid for loss of occupation of land as a result of the erection of a fence otherwise than upon the boundary of contiguous land; and (b) make any finding, determination or order in relation to the performance of replacement, repair or maintenance work in relation to a dividing fence; and 19 [2023] SASCA 18 at [53]. 20 M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27 at [7] (Doyle and Livesey JJA). -- 14 of 19 -- [2023] SASCA 77 The Court 11 (c) determine the person or persons by whom any fencing work is to be performed, and where it is to be performed by different persons, the part of the work to be performed by each; and 31 The doubt that must be attendant on the decision for a grant of leave in this case looks to the determination of the matter by the judge in the manner his Honour considered just. That is to say, this Court must be satisfied that having regard to all the matters the appeal judge took into account, the matters the applicant now raises warrant reconsideration of the judge’s exercise of that broad, evaluative task. 32 The applicants submitted that leave should be granted because of information that has come to light in correspondence since the judgment of the appeal judge. The new scope of works 33 The applicants first submitted that the respondents are promulgating a new scope of works not ordered by the appeal judge. This is a reference to the different posts that Mr Magryn now considers should be remediated. As the applicants expressed it in their written submissions: The Respondents now seek remediation of different posts, which they say is necessary because certain documents were only disclosed in August 2020 (still long before Parker J’s decision). 34 It appears that the applicants would seek to adduce evidence on the appeal about the correspondence since the appeal judgment. The evidence of the new scope of works is, obviously enough, fresh, in the sense that it was not before the Court on the single judge appeal. However, insofar as it shows that the original scope of works was flawed, the applicants’ own submission, above, suggests that this was something the applicants could have explored at trial. The evidence relied on by the applicants in this regard is Mr Magryn’s reaction to a document supplied to him by one of the applicants. Given that the applicants were aware of the positioning of the posts relative to the planter box, spa and deck, they have not explained why they could not have challenged this aspect of Mr Magryn’s proposal at trial. 35 Further, the difference in the scope of works is a different selection of posts. By itself, this does little to cast doubt on the decision of the judge. While the judge’s orders were made in terms of the scope of works that selected particular posts, elsewhere he remarked:21 The holes will be selected in accordance with accessibility requirements bearing in mind the presence of the [applicants’] planter box, shed and spa. So as to gain access, it may be necessary to remove part of the surface timbers and even some of the underlying structure of the [applicants’] deck. 36 This passage demonstrates that the choice of posts to be remediated was not crucial to the evaluative decision. It is most unlikely that the evidence that posts 21 [2022] SASC 95 at [144]. -- 15 of 19 -- [2023] SASCA 77 The Court 12 different from those selected in the scope of works require remediation would warrant reconsideration of the evaluative task under s 12. 37 The next matter relied on by the applicants is related. This is that Mr Magryn has concerns that his May 2020 scope of works cannot be constructed because of the location of the spa and planter box. It is not clear on the applicants’ submissions that this relates to anything other than the choice of different posts. The withdrawal of Complete Underpinning and the new quote 38 The emergence from the correspondence of information that Complete Underpinnings is now not prepared to undertake the work is more significant. As noted above, the quote obtained from a different contractor is $38,434, considerably higher than the Complete Underpinning quote. 39 The applicants seek to rely on evidence of various pieces of correspondence since judgment, emphasising the following: • Complete Underpinning advised the first applicant that the original scope of works was not as basic as they first believed, were complex and near impossible to perform for the quoted amount; • on 12 November 2022, the first respondent emailed his solicitor to the effect that Mr Magryn had said he did not have the same confidence in the standard of work of other underpinners; and • on 16 November 2022, the first respondent sent an email to his solicitor saying that Mr Magryn is reluctant to find a new underpinner. 40 Whether Mr Magryn has confidence in other contractors, if Complete Underpinning is unwilling or unable to perform the work is of some import, given that Mr Magryn’s evidence was premised on Complete Underpinning doing the work. That question is, however, preceded by the evidence that would be sought to be adduced as to the unwillingness of Complete Underpinning to perform the work. That it is unwilling to do so would likely be easily proved. However, the reasons for this unwillingness are another matter. The applicants point to evidence that Complete Underpinning now regard the work as much more complex. The respondents point to evidence of the first applicant’s behaviour towards the Complete Underpinning contractor, including statements that the contractor would be ‘putting [his] neck on the line’ and would ‘end up in court’. 41 There is a dispute as to the reasons for Complete Underpinning withdrawing its services. The respondents’ case on appeal is that the first applicant effectively engineered a situation whereby Complete Underpinning withdrew. The applicants dispute this. The need to resolve that dispute will be relevant to the Court’s -- 16 of 19 -- [2023] SASCA 77 The Court 13 willingness to receive fresh evidence on the appeal. In CDJ v VAJ, the High Court said:22 No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge’s decision. In that context, the likely effect of the further evidence on the Full Court’s view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at trial. 42 On the respondents’ case, Complete Underpinning’s withdrawal is a product of the applicants continuing the dispute beyond the judgment. It would be necessary, on appeal, to explore those disputed circumstances. This is a factor in considering whether this Court, on appeal, would be likely to permit the further evidence. In P J Nash Pty Ltd v Food and Beverage Australia Limited, this Court said:23 The Court may, in its discretion, accept fresh evidence on appeal. In doing so, the Court must be satisfied the evidence could not, with reasonable diligence, have been obtained for use at trial and, if the evidence had been available, it is reasonably clear that an opposite outcome would have resulted.24 The ultimate test is whether it is in the interests of justice to receive the fresh evidence. Public interest in the finality of litigation is also an important consideration.25 (Footnotes in original) 43 Given the contested nature of the evidence about Complete Underpinning’s withdrawal and the consequent lack of clarity about its likely effect, there must be some doubt that it would be permitted to be adduced on appeal. That doubt arises having regard to the importance of the principle of finality to the exercise of discretion. In D’Orta-Ekenaike v Victoria Legal Aid, the High Court said:26 The principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature27 and availability of appeals, rules about what points may be taken on appeal28 and rules about when further evidence may be called 22 (1998) 197 CLR 172 at [114]. 23 [2021] SASCA 86 at [66]. 24 Sunlight Nominees Pty Ltd v Zotti and Zotti [2019] SASCFC 11 at [39]–[42]. 25 Steicke v Pederick (2019) 134 SASR 114 at [7]; Viscariello v Livesey [2013] SASC 99 at [132]. 26 (2005) 223 CLR 1 at [35]. 27 Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan and Meakes (1931) 46 CLR 73. 28 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; O'Brien v Komesaroff (1982) 150 CLR 310; Coulton v Holcombe (1986) 162 CLR 1. -- 17 of 19 -- [2023] SASCA 77 The Court 14 in an appeal (in particular, the so-called “fresh evidence rule”29) are all rules based on the need for finality. As was said in the joint reasons in Coulton v Holcombe:30 “[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial.” (Footnotes in original) 44 The applicants’ case that the decision is attended by sufficient doubt to warrant its reconsideration on appeal depends, therefore, on its ability to satisfy the Court on appeal that it should be permitted to adduce a considerable body of fresh evidence. It is not at all clear, however, that evidence of certain substantive matters, such that different posts should have been selected in the scope of works, was not available to be explored at trial. The evidence sought to be relied on about Complete Underpinning’s withdrawal is contested. No admissible evidence has been adduced. The precise form of the further evidence is unclear. The principle of finality speaks against opening up that contest. 45 The prospect that the remediation works will be much more expensive, on account of being more complex than Complete Underpinning envisaged, is obviously relevant to the evaluative exercise. However, there is a high prospect that the Court on appeal would not be satisfied that evidence of this greater complexity and expense could not, with reasonable diligence, have been obtained for use at trial. Even if the Court were to admit the evidence, it would be but one factor in the evaluative exercise, in that it would show that remediation was in some degree more expensive than replacement. However, as discussed above, that is not the only matter to be taken into account. 46 Having regard to the nature of the evaluative decision under s 12 of the Fences Act, and the relatively poor prospects of the further evidence being admitted on appeal, we are not persuaded that the applicants have established that the decision is attended with sufficient doubt to warrant its reconsideration on appeal. 47 Neither do we think that the appeal raises an issue of principle or general importance. The applicants submitted that the point of importance is ‘what remedy is available to parties where orders cannot be complied with’. That is not a matter of general importance. It is a matter that requires attention in the context of these proceedings which, unusually because of the nature of the jurisdiction, risked requiring the supervision of the Court. However, the judge anticipated difficulty in complying with the orders. Order 6 reads: The parties are at liberty to apply to the Court for any consequential or related orders. 48 A change in the scope of works regarding the posts that are to be remediated is well within the contemplation of this liberty, as is any other change to the scope 29 Orr v Holmes (1948) 76 CLR 632; Ratten v The Queen (1974) 131 CLR 510 at 516-517 per Barwick CJ; Gallagher v The Queen (1986) 160 CLR 392; Mickelberg v The Queen (1989) 167 CLR 259. 30 (1986) 162 CLR 1 at 7. -- 18 of 19 -- [2023] SASCA 77 The Court 15 of works. The respondents have undertaken to ask that the matter be called on before the appeal judge pursuant to the liberty to apply. Whether that is to be heard by the appeal judge or another judge, given that the appeal judge has retired, but noting s 13A of the Supreme Court Act 1935 (SA), can be addressed administratively. Conclusion 49 We refuse leave to appeal. -- 19 of 19 --