Cremona v Knowles [2023] QCATA 156

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Cremona v Knowles [2023] QCATA 156 PARTIES: MARIA CREMONA (applicant) v JOHN TURNER KNOWLES (respondent) APPLICATION NO/S: APL286-23 ORIGINATING APPLICATION NO/S: MCDO121-23 (Brisbane) MATTER TYPE: Appeals DELIVERED ON: 6 December 2023 HEARD AT: Brisbane DECISION OF: Member Lember ORDERS: The application for leave to appeal or appeal is dismissed, pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), on the basis that it is futile/lacks utility. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES- where application for a minor civil dispute dividing fence dispute was decided in absence of a party – where application to reopen the decision was refused – where a subsequent application to renew the decision was also refused – where the applicant seeks leave to appeal and to appeal the decision to refuse the renewal – where the substantive decision made in the fence dispute is not appealed – where the application for leave to appeal lacks utility Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 47, s 61, s 133, s 140, s 143 Cachia v Grech [2009] NSWCA 232 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 -- 1 of 4 -- 2 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION What is this application about? [1] Ms Cremona disputes: (a) A decision made in MCDO0121-23 on 15 March 2023 wherein an order was made for the construction of a dividing fence on the common boundary between her property and that of her neighbour, the respondent, Mr Knowles (the ‘fence decision’); (b) A decision made on 11 April 2023 to refuse Ms Cremona’s application filed 22 March 2023 to reopen the fence decision (the ‘reopening decision’); and (c) A decision made on 7 August 2023 to refuse Ms Cremona’s application filed 24 May 2023 to renew the fence decision (the ‘renewal decision’). [2] The 15 March 2023 hearing proceeded in Ms Cremona’s absence, and she insists on being “allowed to have my say”.1 [3] By an application for leave to appeal or appeal filed 6 September 2023 Ms Cremona seeks to appeal the renewal decision, but to do so, leave is first required.2 Ms Cremona is out of time to seek leave to appeal the fence decision3 and cannot appeal the reopening decision.4 [4] Upon reviewing the application for leave to appeal or appeal and the MCDO file, the Appeal Tribunal made directions on 8 September 2023 inviting submissions from the parties as to whether the application for leave to appeal or appeal should be dismissed as lacking utility, with a decision on that point to be made on the papers, without an oral hearing. [5] I have decided to dismiss the application for leave to appeal or appeal for the reasons that follow. [6] Section 133 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides that an application for renewal can be brought within twenty- days of the applicant receiving the final decision (or the reasons for it, if requested) if: (a) it is not possible for the tribunal’s final decision in a proceeding to be complied with; or (b) there are problems with interpreting, implementing or enforcing the tribunal’s final decision in a proceeding. [7] On the material before the Appeal Tribunal: 1 Application for leave to appeal or appeal filed 6 September 2023, part D “Orders Sought”. 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 143(3) (‘QCAT Act’). 3 QCAT Act, s 143(3). 4 QCAT Act, s 140(5). -- 2 of 4 -- 3 (a) The fence decision was made on 15 March 2023. (b) Ms Cremona received the fence decision on or by 21 March 2023 and the reasons for it on 4 April 2023. (c) The application to renew the fence decision was filed on 24 May 2023, which is more than twenty-eight days after Ms Cremona received the reasons for it. (d) Time can be extended under section 61 of the QCAT Act but only upon an application to extend time, which has not been filed (nor has an informal extension of time ever been requested). (e) The application to renew was grounded upon Ms Cremona’s objection to chemicals she says are contained in treated timber, which does not meet the requirement for the Tribunal’s decision to be “impossible to comply with or problematic to interpret, implement or enforce” so as to substantiate a renewal of the decision. (f) Further, Ms Cremona’s allegation of chemicals in treated timber creating a problem with implementing the fence order is a mere assertion by her and not supported by any evidence (rather, Ms Cremona simply says that “an entire library of evidence to this effect has been available online for public reference for some years now”).5 Further, Ms Cremona had tendered evidence ahead of the 15 March 2023 hearing that included an inspection report of the existing timber fence between the properties that makes no mention of the alleged dangers of treated timber. Nor did Ms Cremona raise this objection or any evidence on it despite filing several other documents prior to the hearing. [8] There appears, therefore, to be no error made in refusing the application to renew. [9] Section 47 of the QCAT Act permits the tribunal to dismiss a proceeding if it considers a proceeding to be frivolous, vexatious or misconceived, lacking in substance or an abuse of process. [10] In reply to directions requesting submissions on point, Ms Cremona continued to insist that she was denied the right to be heard at the 15 March 2023 hearing. She continues to dispute that she was contacted by telephone for her hearing and insists that she needs to have her voice heard. She insisted an error was made in making the fence decision in her absence on a false assumption that she had failed to appear. Ms Cremona says that she has been treated unfairly. [11] The difficulty with these submissions is that they relate entirely to the reopening decision, which cannot be appealed, and to the fence decision, which Ms Cremona is well out of time to appeal and which, in any event, she has not sought to appeal. [12] In determining whether to grant leave, the Appeal Tribunal must be satisfied that: (a) there is a reasonably arguable case of error in the primary decision;6 (b) there is a reasonable prospect that the appellant will obtain substantive relief;7 5 Application to renew a decision filed 24 May 2023, Part 3. 6 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 (‘QUYD’). 7 Cachia v Grech [2009] NSWCA 232, 2. -- 3 of 4 -- 4 (c) leave is need to correct a substantial injustice caused by some error;8 or (d) there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.9 [13] For the reasons given, there is no reasonably arguable case of error in the primary decision (the renewal decision). [14] There is no basis upon which Ms Cremona might conceivably be given leave to appeal the renewal decision and there is no utility in permitting her application for leave to appeal or appeal to proceed. [15] The decision of the Appeal Tribunal is therefore to dismiss the application for leave to appeal or appeal pursuant to section 47 of the QCAT Act, on the basis that it is futile/lacks utility. 8 QUYD (n 6). 9 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580. -- 4 of 4 --