Bond v Hirst [2024] QCATA 60

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Bond v Hirst [2024] QCATA 60 PARTIES: ROBERT BOND (applicant/appellant) v ANDREW HIRST (respondent) and JAIME EMMA HIRST (respondent) APPLICATION NO/S: APL101-23 ORIGINATING APPLICATION NO/S: MCDO563/22 MATTER TYPE: Appeals DELIVERED ON: 29 May 2024 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: A/Member Lumb ORDERS: Leave to appeal is granted. The appeal is allowed. The decision of the Tribunal dated 18 January 2023 is set aside. The matter is returned to a differently constituted Tribunal for reconsideration, with the hearing of additional evidence as directed by the Tribunal. Pursuant to s 75 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the subject matter of the minor civil dispute proceeding MCDO563/22 is referred for mediation to be conducted by a mediator who is a member of the Tribunal, at a date, time, and place to be advised by the Tribunal, before reconsideration of the matter occurs. CATCHWORDS: APPEAL – GENERAL PRINCIPLES – leave to appeal – minor civil dispute – where dispute over ‘give and take’ fence straddling two rural properties – where properties separated by State land in the form of a watercourse – whether Tribunal erred in finding that it had no jurisdiction -- 1 of 10 -- 2 deal with dispute under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 7, s 11, s 12, s 13, s 16, s 33, s 35 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 75, s 142 Berry v Treasure & Anor [2021] QCATA 61 Erratt v Grills [2015] NSWSC 594 Landale v Menzies (1909) 9 CLR 89 Saxer v Hume [2022] QCATA 25 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Self-represented REASONS FOR DECISION Introduction [1] By an Application for leave to appeal or appeal filed on 11 April 2023 (‘the Appeal Application’), the Applicant seeks leave to appeal, and to appeal, a decision of the Tribunal made (by an Adjudicator) on 18 January 2023 (‘the Decision’).1 The Decision was made in a proceeding commenced by the Applicant against the Respondents to the Appeal Application by Application for minor civil dispute – dividing fences filed on 2 June 2022 (‘the MCD Application’). By the Decision, the Adjudicator dismissed the MCD Application. [2] In brief terms, the dispute involved a ‘give and take’ fence (‘the Fence’) straddling two rural properties in the Western Downs Region of Queensland. The properties are separated by the Moonie River. [3] As I understand the broad competing positions of the parties: (a) the Applicant sought an order that the Fence be removed and that a new fence be constructed on a different line to that of the Fence; (b) the Respondents opposed the Applicant’s proposal and, initially (it seems) proposed that the parties (at a shared cost, 50% each) remove the Fence and construct a replacement fence along the same line as the Fence and, subsequently, proposed that the parties should fence their own properties. [4] The Adjudicator dismissed the MCD Application on the basis that the Tribunal did not have jurisdiction to determine the dispute. 1 On 5 June 2023, the Appeal Tribunal granted the Applicant an extension of time to file the Appeal Application. -- 2 of 10 -- 3 Leave to appeal is required [5] An appeal against a decision by the Tribunal in a proceeding for a minor civil dispute may be made only if the party has obtained the Appeal Tribunal’s leave to appeal.2 [6] As to the Tribunal’s approach to an application for such leave, I respectfully adopt the following observations of Judicial Member DJ McGill SC in Saxer v Hume:3 … As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage. In deciding whether grounds for leave to appeal have been shown, it is relevant to consider that the proceeding was a minor civil dispute, and the obligation on the Tribunal was to make orders it considered to be fair and equitable to the parties to the proceeding in order to resolve the dispute: the QCAT Act s 13(1). The Tribunal was also required to comply with the QCAT Act s 28 and s 29. (citations omitted) [7] Further, as was said by Justice Daubney, President, in Berry v Treasure & Anor:4 There is no automatic right of appeal against minor civil dispute decisions. I respectfully adopt and endorse the following observations by the former President, Justice Alan Wilson, in Durrand v Karaolis: The Queensland Parliament has made it clear, in the QCAT Act, that so far as possible minor civil disputes of this kind are to be resolved by a simple procedure which is speedy, inexpensive and final. That conclusion is reinforced by the fact that before a party can appeal a decision in this jurisdiction it must obtain leave from the Appeal Tribunal … In other words, there is not an automatic right to appeal these decisions; rather, an applicant must first establish that it has a right to a grant of leave. (citation omitted) [8] For the reasons set out below, I grant leave to appeal on the basis that there is a reasonable argument that the Decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error. The grounds of appeal [9] The grounds of appeal were outlined in the written submissions attached to the Appeal Application. There are five grounds of appeal which are, in essence: (a) the Adjudicator erred in law by stating that it was not possible to ascertain the current boundary of the property and as a consequence the Tribunal did not have jurisdiction to determine the MCD Application; (b) the Adjudicator erred in not forming a view as to the true boundary between the two properties, and ordering a fence on the boundary; 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i) (‘the QCAT Act’). 3 [2022] QCATA 25, [2]. 4 [2021] QCATA 61, [14]. -- 3 of 10 -- 4 (c) the hearing was ‘compromised’ by the Respondents’ failure to file material within the timeframe directed by the Tribunal; (d) the Adjudicator failed to take into consideration or give sufficient weight to the Applicant’s evidence and various identified information; (e) that the Adjudicator should have adjourned the hearing to obtain expert evidence on the issue concerning the boundary location and to then continue on with the MCD Application. [10] In my view, the threshold question is whether the Adjudicator erred in finding that the Tribunal did not have jurisdiction to decide the dispute. [11] Before considering that issue, the details of the Fence should be considered. The Fence [12] Having regard to the material before the Adjudicator and the transcript of the hearing, it appears undisputed that: (a) the Fence is approximately 100 years old; (b) the Fence originally straddled two larger properties than the existing properties of the parties; (c) in about 1966, there was a subdivision of the larger parcel which created the properties now owned by the Applicant and the Respondents respectively (‘the subdivision’); (d) the Applicant’s property sits to the west of the Respondents’ property; (e) viewed from a north to south perspective, the Fence runs in a southerly direction through a section of the Applicant’s property then dog-legs diagonally in a south-easterly direction across to the Respondents’ property (the Moonie River bisects this section of the Fence) and then dog-legs in a generally southerly direction and terminates at the southern boundary of the Respondents’ property; (f) by reason of the configuration of the Fence, relatively sizeable portions of land owned by each party sit on the other side of the Fence. The proposed line of the new fence sought by the Applicant [13] The line proposed by the Applicant was drawn in red pen on the copy of a Survey Plan dated 1 April 1966 (‘the Survey Plan’) attached to the MCD Application. Viewed from a south to north perspective, the proposed line commenced at the south-eastern boundary of the Applicant’s property and ran in a north to north-westerly direction in a straight line then dog-legged at approximately 90 degrees across to the Respondents’ property (the Moonie River bisects this section of the proposed line) and then zig- zagged broadly following the contour of the Moonie River, and terminating at the northern boundary of the Respondents’ property. The issue of jurisdiction [14] After hearing the matter, the Adjudicator reserved the Decision and provided oral reasons on 18 January 2023 (‘the Reasons’). [15] As I read the transcript of the Reasons, the Adjudicator held that the Tribunal had no jurisdiction because changes in legislation (in 2010) subsequent to the subdivision -- 4 of 10 -- 5 meant that there was, at the date of the hearing, ‘no true boundary line between these two properties’; that the boundary line had to be ‘defined’; and that this could only be done by a proper survey of the relevant land to determine what changes have been made in respect of the ‘true boundary lines between the parties’.5 The Adjudicator appears to have relied upon a further ground for finding that the Tribunal had no jurisdiction. This will be addressed below. Did a ‘true boundary line’ have to be established? [16] I consider that this issue falls within the grounds of appeal set out in subparagraphs 4(a) and 4(b), and, possibly, 4(d) above. [17] On its face, the Survey Plan delineated the respective properties of the parties, and included relevant dimensions. [18] The Respondents’ material included an email trail (Annexure 11) comprising, first, an email from Mr Hirst to Ms Janine York (Senior Land Officer with the Department of Resources), sent on 20 July 2022, providing a copy of the Survey Plan, and second, the response of Ms York sent on 26 July 2022. Ms York’s email is in the following terms: In response to query regarding the location of boundary fence between Lot 18 on CP900064 being freehold land held in the name of Jaime Hirst and Andrew Hirst and Lot 39 on PG331 being freehold land held in the name of Robert Bond. Please be advised that adjoining landowners do not own land to the centre of the watercourse. Section 13A(1) of the Land Act 1994 stipulates that if land has a non-tidal boundary (watercourse), other land that adjoins the boundary and is on the watercourse side of the boundary is the property of the State. You may also wish to familiarise yourself with Section 62, 99 & 100 of the Survey and Mapping Infrastructure Act 2003. Freehold deeds of grant also define the boundaries of land that is granted to landowners. The deeds of grant for Lot 39 on PG331 and Lot 18 on CP900064 clearly exclude the Moonie River from adjoining lots. (underlining added) [19] At the hearing, both parties accepted this to be the position.6 The Respondents also relied on a large, coloured plan (Annexure 2, Map 1) (‘the coloured plan’) which identified the watercourse boundary.7 [20] The Respondents’ position on this issue on the Appeal Application appears to remain the same.8 [21] In my view, the evidence before the Adjudicator established that: (a) the Survey Plan identified the respective boundaries of the Applicant’s and Respondents’ properties (lots) adjoining the Moonie River; 5 Transcript (18.01.23) T1-4 lines 36-41. See also Transcript T1-3, line 36 - T1-4 line 3, T1-4 lines 9- 15. 6 Transcript (16.01.23) T1-5 lines 27-29, T1-9 lines 27-33 (Mr Hirst); T1-16 lines 1-28 (Mr Bond). 7 Transcript (16.01.23) T1-4 line 27 – T1-5 line 29. 8 Respondents' submissions filed on 25 July 2023, paragraph 1. -- 5 of 10 -- 6 (b) the Moonie River was identified by way of the Survey Plan and, further, the coloured plan; (c) the Moonie River is excluded from the respective lots, and it is the property of the State. [22] I also consider that Ms York’s email addresses any concern that the Adjudicator may have had in relation to the amendments made by the legislation referred to by the Adjudicator, namely the Natural Resources and Other Legislation Amendment Act 2010 (Qld), in particular, the insertion of a new s 13A of the Land Act 1994 (Qld). [23] In my view, in light of the above, there was no ‘true boundary line’ to be defined; rather, the respective boundaries of the parties’ properties which adjoined the Moonie River were identified. State land (in the form of the Moonie River) separated the two properties. [24] Further, I consider that, having regard to the definition of ‘common boundary’ in the NDA, the extended definition of a ‘dividing fence’ in s 12(2)(a) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the NDA’),9 and the type of fencing work that may be ordered by the Tribunal pursuant to s 35(1)(a) of the NDA, the existence of State land (that is, the Moonie River) between the respective properties did not preclude the Tribunal from deciding the dispute (if it otherwise had jurisdiction). [25] The definition of ‘common boundary’ contemplates that adjoining land (consisting of one or more parcels of land) may be separated by, relevantly, a watercourse (or other natural feature). Subsection 12(2)(a) of the NDA contemplates that a fence separating the land of adjoining owners constructed on a line other than the common boundary is also a ‘dividing fence’ if, relevantly, it is impracticable to construct a fence entirely on the common boundary of the adjoining lands because of natural physical features. Subsection 35(1)(a) of the NDA provides that the Tribunal may decide the line on which the fencing work is to be carried out, whether or not that line is on the common boundary of the adjoining land. [26] Construing the NDA as a whole, I consider that the existence of a watercourse (such as the Moonie River) between adjoining properties does not provide an obstacle to the Tribunal hearing and deciding a dividing fence dispute (if the Tribunal otherwise has jurisdiction). [27] In my view, the Adjudicator erred in finding that the Tribunal did not have jurisdiction because there was no identified ‘true boundary line’ between the two properties and that a true boundary line had to be defined.10 The ‘common boundary’ was not in dispute between the parties, and the evidence before the Tribunal identified the common boundary for the purposes of the dispute. Jurisdiction of the Tribunal to decide a dispute involving a give and take fence? [28] In the Reasons, the Adjudicator said:11 The application that has been made seeks an order that the give-and-take fence be moved to a different line, closer to, but not upon the current boundary line. 9 Subsection 12(2)(b) may also be applicable, but it is unnecessary to decide this question. 10 T1-4 lines 36-41; see also T1-4 lines 9-11. 11 T1-2 line 40 - T1-3 line 6. -- 6 of 10 -- 7 Whilst the Act in section 29 does contemplate that there can be an agreed line, I do not believe that the tribunal has jurisdiction to merely determine a give-or- take fence. The very title that these informal arrangements have shown that they are informal matters of convenience between two adjoining owners. There is simply no evidence that there has ever been a written agreement which would deal with the issue that has been raised in these proceedings. Because those agreements are so informal, I do not believe that a give-and-take fence can be regarded as a boundary fence upon which the tribunal can make a ruling. Effectively, what happens with the give-or-take fence is that some exclusive possession akin to a tenancy is given over that parcel of land. As I have indicated for the further reasons, I do not believe the Tribunal has jurisdiction to do what is proposed. (underlining added) [29] Whilst it was not entirely clear to me whether these observations concerned a discrete ground on which the Adjudicator found a lack of jurisdiction, given the underlined observations above, I will treat it as such. [30] As to the nature of a ‘give and take fence’, in Landale v Menzies (‘Landale’),12 Griffiths CJ said the following:13 The practice of adopting a “give-and-take fence” between two properties separated by a watercourse is well known. Even without the express testimony of the plaintiff I should take it to be notorious that the object of such an arrangement is two-fold, (1) to obtain a more convenient location for a dividing fence, and (2) to divide the permanent water in the watercourse between the parties. [31] In Erratt v Grills (‘Erratt’),14 Lindsay J considered Landale and said the following:15 11 Conceptually, its essential feature is not a need to access water, but convenience to neighbouring parties in location of a dividing fence otherwise than on their boundary line. Geography may drive convenience, but convenience is the touchstone of the concept. 12 A purpose of sharing available water was an integral part of the object of the give and take fence agreement under consideration in Landale v Menzies, and it may enjoy a similar importance in most cases (including the present one), but it is not, conceptually, an essential feature of a give and take fence. [32] In my view, having regard to the matters discussed at paragraph [24] and [25] above, a fence may be a ‘dividing fence’ even if it is not situated (or would not be situated) on the ‘common boundary’. In each case, a factual enquiry would arise as to whether a fence in the nature of a give and take fence was a ‘dividing fence’ within the meaning of s 12 of the NDA and, if so, whether it was a ‘sufficient dividing fence’ within the meaning of s 13 of the NDA. The fact that a fence may be characterised as a ‘give and take’ fence does not, of itself, take it outside the jurisdiction of the Tribunal. 12 (1909) 9 CLR 89. 13 At 99; see also Barton J at 105 and O’Connor J at 117-118. 14 [2015] NSWSC 594. 15 At [11]-[12]. -- 7 of 10 -- 8 [33] For completeness, in the event that an existing give and take fence is found not to be a ‘dividing fence’, I consider that the Tribunal has jurisdiction to order (subject to satisfaction of the various statutory requirements) that a sufficient dividing fence be constructed (even if not on the line of the common boundary). In this respect: (a) by s 7(1) of the NDA, a sufficient dividing fence is required between two parcels of land if an adjoining owner requests a dividing fence; (b) by s 11(1), subject to the exceptions in s 11(2), a ‘fence’ is defined (widely) as ‘a structure, ditch or embankment, or a hedge or similar vegetative barrier, enclosing or bounding land, whether or not continuous or extending along the entire boundary separating the land of adjoining owners’, and includes a natural (or artificial) watercourse separating the land of adjoining; (c) by s 16, ‘fencing work’, for a dividing fence, includes, amongst other things, the design and construction of the whole or part of the dividing fence; (d) as noted above, by s 35(1)(a), the Tribunal may decide the line on which the fencing work is to be carried out, whether or not that line is on the common boundary of the adjoining land; (e) by s 33(3), if there is a fence other than a dividing fence on adjoining land, the Tribunal may order that it be removed if the Tribunal considers its removal is necessary to allow fencing work for a dividing fence. [34] As to the Respondents’ argument there may be two fences on the adjoining properties,16 having regard to the provisions in paragraph [33] above, I consider that a single ‘sufficient dividing fence’ is required if requested by an adjoining owner.17 However, a dividing fence need not be continuous or extend along the entire boundary, and it is taken to include a natural watercourse (such as the Moonie River) separating the land of adjoining owners. Consequently, a dividing fence may contain separate sections of fence on the respective adjoining properties, but they must form part of a ‘sufficient dividing fence’.18 In this context, the Tribunal could order, pursuant to s 35(1)(d) of the NDA, that each adjoining owner construct a section of the dividing fence on that owner’s property in order to establish a sufficient dividing fence. [35] I consider that a give and take fence may constitute a ‘dividing fence’ for the purposes of the NDA (subject to satisfying the requirements of the statute). In my view, the further ground relied upon by the Adjudicator did not provide a jurisdictional basis to refuse to hear and determine the dispute. [36] For completeness, I note two further matters. [37] First, there may have been grounds for the Adjudicator to refuse to make the particular order sought by the Applicant, for example, if the proposed line impinged upon an existing area the subject of exclusive possession arising out of a tenancy (if the 16 See Respondents' submissions filed 25 July 2023, paragraph 2. 17 Subject to satisfaction of the requirements of the NDA. 18 This does not preclude neighbours from fencing other parts of their own property, in addition to the dividing fence. -- 8 of 10 -- 9 tenancy had not previously been terminated)19 or on the other grounds relied upon by the Respondents.20 However, I consider that such matters would go to the merits of the MCD Application rather than the issue of jurisdiction. [38] Second, as to the Adjudicator’s reference to the ‘agreements’ being ‘informal’, in Landale, O’Connor J said that such an agreement may be written or oral or ‘inferred from circumstances’.21 Summary [39] In my respectful view, the Adjudicator erred in finding that the Tribunal did not have jurisdiction to determine the dispute under the NDA on the grounds relied upon. I further consider that this conclusion involved a question (or questions) of law. [40] Given this conclusion, it is unnecessary to consider the balance of the grounds of appeal raised by the Applicant. [41] I find that the appeal should be allowed. [42] Pursuant to s 146(c) of the QCAT Act: (a) the Decision is set aside; (b) the matter is returned to the Tribunal for reconsideration, with such additional evidence as is directed by the Tribunal. [43] Also, having regard to the Reasons, I consider that the matter should be heard by a differently constituted Tribunal.22 [44] The parties’ dispute remains unresolved. Whilst the parties have, to date, been unable to resolve the issue between themselves, I consider that a resolution would be significantly aided if an independent third party were to assist them in that process. In my view, this dispute is ideally suited to a mediation process, particularly given that there may be various options open to the parties to reach an acceptable outcome. To that end, I consider that an order should be made, pursuant to s 75 of the QCAT Act,23 that the subject matter of the minor civil dispute proceeding be referred for mediation to be conducted by a mediator who is a member of the Tribunal, at a date, time, and place to be advised by the Tribunal, before reconsideration of the matter occurs. Orders [45] For the above reasons, I make the following orders: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The decision of the Tribunal dated 18 January 2023 is set aside. 19 See Erratt, [108]-[109]. Although even in that instance, I consider that it would have been open to the Adjudicator to make an order in relation to fencing work in respect of the Fence on the existing line, if the Adjudicator were satisfied that the Fence was a ‘dividing fence’ but not a ‘sufficient dividing fence’. 20 See, for example, Respondents' submissions filed 25 July 2023, paragraph 4. 21 At [117]. 22 See, specifically, T1-4 lines 17-35. 23 I also consider that this order could be made pursuant to s 146(c)(ii) of the QCAT Act. -- 9 of 10 -- 10 4. The matter is returned to a differently constituted Tribunal for reconsideration, with the hearing of additional evidence as directed by the Tribunal. 5. Pursuant to s 75 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the subject matter of the minor civil dispute proceeding MCDO563/22 is referred for mediation to be conducted by a mediator who is a member of the Tribunal, at a date, time, and place to be advised by the Tribunal, before reconsideration of the matter occurs. -- 10 of 10 --