Fencing Quickguide

PLEASE NOTE: The Committee is not able to provide advice about fences. If you are unable to find an answer to your question in the Fencing QuickGuide, please do not contact the Committee as we will be unable to assist you. We suggest that you contact a community legal centre (http://www.communitylaw.org.au/find_a_clc.php) or a solicitor instead.

The Magistrates' Court

The Court's powers

Under the Fences Act, the Magistrates' Court may order the following:

the kind of fence to be constructed (S.7(1)(a)), having regard to the kind of fence usually constructed in such a location (S.7(6)). In the case of vermin-proof fencing, this power is limited to prescribing the kind of vermin-proof fence to be constructed (S.20(2))
the portion of the fence to be constructed by each occupier or the proportion of the total cost each is to bear (S.7(1)(b))
where necessary and only in addition to other Orders, the position of the fence (S.7(1)(c))
where an occupier cannot be found, all of the above, together with an order authorising fencing to proceed (S.9(2))
where an order made under S.9(2) is later served upon an occupier and that occupier complains that the order iS inequitable, relief from all or part of that order (S.9(8))
on application by a Council, refusal of permission to erect a temporary fence on a council-owned road reserve (S.13(2))
the proportion of the total cost of fence repairs to be borne by each occupier (S.15(2) and S.15(3))
where the occupier of one lot satisfies the Court that s/he is unable to pay her/his share of the cost of vermin-proof fencing, an order that fencing proceed, subject to an interest-bearing charge being imposed on the occupier’s land (SS.24(1) & (2))
convictions for offences under the Act (S.26 and s.27)
orders for recovery of contributions (S.28)

Deciding whether to take the matter to court

A Court action will inevitably worsen your relationship with your neighbours, and should be avoided if possible. Court actions can also be costly and in simple fencing matters may cost more than the amount the person taking action is trying to recover.

The Magistrates' Court, if contacted, advises people to take the matter first to the Dispute Settlement Centre of Victoria, which will mediate rather than determine the dispute. You should certainly consider proposing this to the other party, before proceeding to the Magistrates' Court. Even if Magistrates' Court proceedings have been issued, you can have the Magistrate’s Court action delayed ("stayed") while you see if your can reach a mediated outcome.

Costs

If you end up having to go to the Magistrates' Court, you could consider representing yourself. Most fencing matters involve disputes of fact and differences of aesthetic taste, rather than points of law, and you may be able to save the considerable cost of employing a solicitor.

Court issuing fees on a Magistrates' Court Complaint vary with the amount of the claim, but in most fencing cases (that is, claims up to $1000) the fee is $58. For claims between $1000 and $10,000 the fee is $116 and, for claims between $10,000 and $40,000, $204. (Fees as at June 1998. Check the Magistrates' Court of Victoria website to see if the fee structure has been changed).

Section 7(2) allows the Court to appoint an arbitrator to determine the matter. In practice, a Magistrate will hear the case. If the amount being sought is less than $500, the Court will regard the Magistrate as acting in the role of arbitrator, and apply a cap to costs.

If you win your case, the other party will be ordered to repay you the Stamp Duty and, if you have engaged a solicitor, his/her costs according to the Court scale. You should be aware, however, that - as with many doctors' fees - solicitors fees generally exceed scale, and not all of the solicitor's work is covered by the scale, so there will be a "gap" you have to pay. If the amount you are going to Court for is small, it can be swallowed up by this "gap" fee, leaving you little satisfaction from your win!

Remember, too, that if the other side does not pay, you may have to take action to enforce the order, at additional cost (see Enforcement). If the other person has no money you may still be frustrated, unless you are prepared to take the very drastic step of seeking to obtain possession of their house to satisfy the order.

If you lose, you will be ordered to pay the other side's costs. If they have engaged a solicitor or barrister, these are likely to be in the region of $300-$400 (and could be more), and will have to be paid in addition to your own costs.

How to commence an action

For details on how to commence a Magistrates' Court action see Magistrates' Court Complaint.

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PLEASE NOTE: The Committee is not able to provide advice about fences. If you are unable to find an answer to your question in the Fencing QuickGuide, please do not contact the Committee as we will be unable to assist you. We suggest that you contact a community legal centre (http://www.communitylaw.org.au/find_a_clc.php) or a solicitor instead.