Deveze v Suosaari [2021] QCATA 106

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Deveze v Suosaari [2021] QCATA 106 PARTIES: MICHELLE FRANCOISE LOUISE DEVEZE (applicant) v LEONARD SUOSAARI & MYRA SUOSAARI (respondents) APPLICATION NO: APL315-20 MATTER TYPE: Other minor civil dispute matters DELIVERED ON: 25 August 2021 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Dr J R Forbes ORDERS: The application for leave to appeal is dismissed CATCHWORDS: APPEAL – APPLICATION FOR LEAVE TO APPEAL – neighbourhood dispute – dividing fence – where applicant made repairs to fence – whether urgent fencing work – where applicant sought $2,342.50 contribution from respondent neighbours – where applicant proceeded with fencing work without agreement and before tribunal hearing – whether completion of fencing work premature – whether applicant entitled to recover contribution in the circumstances – where tribunal dismissed claim for serious procedural irregularities – whether irregularities merely procedural and non-substantial – whether fresh evidence available - no appellable error shown Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 12, s 31, s 32, s 91 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 32 Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 Aurisch v Fong and Anor [2020] QCAT 380 Coulton v Holcombe (1986) 162 CLR 1 -- 1 of 6 -- 2 Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359 Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330 International Professional Services v Tritone Nominees Pty Ltd [2011] QCATA 332 Queensland Building Services Authority v Watkins [2014] QCA 172 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 Robinson v Corr [2011] QCATA 302 Watkins v Queensland Building Services Authority [2013] QCAT 535 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 Background [1] The parties occupy adjoining rural properties at Crohamhurst, in the Sunshine Coast hinterland. At the relevant time the applicant (`Devize’) used her land as a cattle stud. The respondents (`the Suosaaris’) grazed no cattle of their own.1 [2] Initially the Suosaaris allowed Devize to agist her animals on their property, but in 2015 that permission was withdrawn. Nevertheless, to the annoyance of the Suosaaris, and despite a decrepit boundary fence2, Devize’s cattle periodically strayed onto their land. [3] So Devize decided to renovate the fence. She obtained a quotation from a fencing contractor, gave a copy to the Suosaaris, and pursuant to section 31 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (`NDA’) asked them to bear half the cost ($2342.50)3. The Suosaaris refused to contribute. [4] A `dividing fence’ means a fence on the common boundary of adjoining lands.4 As the Tribunal subsequently found, [5] Section 31(6) of the NDA provides: 1 Reasons for Decision (`RD’) 23 September 2020 paragraph [11(b)]. 2 The disrepair of the fence is described by Devize in the transcript of hearing 12 August 2020 (`T’) at page 5 line 30 and page 7 lines 24-27. 3 Based on a contractor’s quotation of $4,685, dated 28 October 2019: Transcript of hearing 12 August 2020 (`T’) page 2 lines 32, 40. 4 NDA s 12(1). -- 2 of 6 -- 3 If, within one month after the notice is given, the adjoining owners have not agreed about the proposed fencing work Contribution application [6] Consequently Devize filed the application to commence these proceedings5, namely a Notice to Contribute for Fencing Work, under section 31 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (`NDA’) and served it upon the Suosaaris on 28 December 2019.6 [7] A `dividing fence’ means a fence on the common boundary of adjoining lands.7 The Tribunal found that the fence in question answered that description.8 [8] The fencing work began on or about 10 March 20209 and was completed approximately five months before Devize’s contribution action came before the Tribunal. [9] The hearing took place at Maroochydore on 12 August 2020. The parties represented themselves. After hearing the evidence of Devize and Ms Suosaari, and following some discussion of marginal importance the Adjudicator announced that she would reserve her decision, with a warning: `I think there might be an issue where the fencing work has already been undertaken before QCAT makes an order.’10 Obstacles to application [10] There were indeed issues of fundamental importance confronting the applicant’s case. [11] The Tribunal referred to section 31(7) of the NDA which provides: Until the adjoining owners have agreed about the proposed fencing work... neither owner may carry out fencing work, or arrange to have fencing work carried out for the dividing fence other than for urgent fencing work.11 [12] In this case, unfortunately, the work was carried out before any agreement was made, before mediation, and several months before the Tribunal dealt with the application.12 [13] According to Devize, she was told by registry staff that once the section 31 application was filed she was ipso facto and immediately free to carry out the proposed work.13 That is plainly contrary to the Act, albeit received in good faith. It is to Devize’s credit that she admits she has no documentary evidence of that erroneous advice. Doubtless she acted in good faith. She was dealing with a district registry, where some staff members may have been less familiar with NDA practice and procedure than colleagues at QCAT’s principal 5 RD paragraph [1]. 6 RD paragraph [3]. 7 NDA s 12(1). 8 T paragraph [20]. 9 T page 3 lines 1, 22. 10 T page 6 lines 7-8. 11 As to urgent work see NDA s 32. 12 T paragraph [8]. 13 T page 6 lines 10-11; Written submission 31 March 2021. -- 3 of 6 -- 4 office in Brisbane. But be that as it may, it is trite law that only the legislature may repeal or amend the terms of a statute. Sub judice [14] However, section 31(7) alone does not determine the case. It is concerned with acts done without agreement. Its evident purpose is to forbid one party, absent an agreement, from acting unilaterally, thus presenting the other party (and QCAT) with a fait accompli. [15] But in this case we not only have no agreement, but also no overriding order of the Tribunal. It is a fundamental principle – and one that needs no particular statutory prohibition to support it – that once a legal issue is submitted to a court or tribunal neither party may take the law into his own hands, or take the court for granted, by pre-empting its decision. So ultimately it is the sub judice rule, rather than section 31(7), that stands adamantly in Devize’s way. Primary decision [16] It follows, in my view, that the primary tribunal was entitled, indeed bound to decide that: [A]s Ms Devize proceeded with the fencing work without agreement or a Tribunal order, she is prevented from claiming that contribution by virtue of section 31(7) of the NDA and on that basis14 her application must be dismissed.15 [17] In other words, the reason for rejection is that Ms Devize did not follow the procedures mandated by the NDA and governing applications for contributions to the costs constructing or maintaining a dividing fence. Doubtless Devize acted in good faith but the relevant legislation is an insuperable obstacle. Limits of leave application [18] Ms Devize has not identified any appellable error of law that is reasonably arguable. That is the true, and indeed the only purpose of an application for leave to appeal.16 An application of this kind is not an opportunity to conduct a retrial, or to `second guess’ the primary tribunal’s decision, but that is what each party’s submissions really amount to.17 Unfortunately, it is common error of self-represented litigants to make those assumptions. However, the trial is not merely a `preliminary skirmish’.18 The very point of the `leave to appeal hurdle’ is to curb attempts to misuse appeals as retrials or devices of delay, or to introduce evidence or arguments that might have been led in the first place, but in fact were not. It is the legislature’s intention that minor civil claims be resolved economically and 14 Not to mention the sub judice rule. 15 RD page 5 paragraph [21]. 16 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 at [6]; Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359 at [18]; Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330 at [19]; International Professional Services v Tritone Nominees Pty Ltd [2011] QCATA 332. 17 Deveze in written submissions dated 8 March 2021 and 31 March 2021; Suosaaris in submissions dated 4 and 8 March 2021. 18 Coulton v Holcombe (1986) 162 CLR 1 at 7 per Gibbs CJ, Wilson, Brennan and Dawson JJ. -- 4 of 6 -- 5 speedily.19 It is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done.20 Defences suggested [19] It remains to consider briefly several submissions made by Devize with a view to avoiding the legal consequences of acting without an agreement or a Tribunal order. Urgent? [20] First, Devize sought refuge in section 28(2) of the NDA: If it is impracticable to give a notice under section 31, an owner may, without giving the notice, carry out the fencing work required to restore the dividing fence to a reasonable standard ... The Tribunal found that the repairs were not urgent, and, with respect, I agree. In Aurisch v Fong and Anor21a month’s delay between quotation and repair work was fatal, and in the present case a quotation dated 28 October 2019 was not executed until 10 March 2020.22 There is no substance in this submission. Merely procedural? [21] Next, it was submitted that the applicant’s procedural errors do not detract from substantial compliance with the legislation.23 This courageous submission contends, unsuccessfully, with the facts that there is no compliance with either section 31(7) or the sub judice principle. Furthermore, those rules are mandatory; they are not merely procedural requirements that the Tribunal may waive in its discretion.24 Unless and until they are observed, there is no valid application to adjudicate, and hence no jurisdiction. I reject this submission. Fresh evidence? [22] Third, Deveze submits that there is fresh evidence in the form of an email sent to her on 28 March 2020.25 The latter date is some four month before the date of trial. Fresh evidence must be material that was not reasonably available at the time of the trial and which, if admitted is reasonably likely to altered the result. The submission is hopeless, and must be rejected. 19 QCAT Act s 3(b). 20 Robinson v Corr [2011] QCATA 302 at [7]. Cf the application for leave to appeal filed herein on 9 October 2020: `I wish to appeal this decision because I believe that [it] is not fair and just’. `I do not consider this to be a fair and just outcome’. 21 [2020] QCAT 380. 22 T page 2 line 32, page 3 lines 1, 22. 23 Submissions by Devize 31 March 2021. Cf NDA s 91: ` Substantial compliance with any agreement, notice or order mentioned in this Act is adequate for this Act.’ 24 Compare the mandatory preconditions in Watkins v Queensland Building Services Authority [2013] QCAT 535; affirmed [2014] QCA 172; Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7. 25 Submission dated 18 February 2021. -- 5 of 6 -- 6 Conclusion [23] The applicant for leave has not demonstrated any appellable error in the decision under review. Accordingly the application for leave must be dismissed. ORDER The application for leave to appeal is dismissed. -- 6 of 6 --