Bull v Porteus [2018] QCATA 100

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Bull v Porteus [2018] QCATA 100 PARTIES: KENNETH JAMES BULL (appellant) v PORTEUS (respondent) APPLICATION NO/S: APL342-17 ORIGINATING APPLICATION NO/S: MCDO1639-17 (Brisbane) MATTER TYPE: Appeals DELIVERED ON: 5 July 2018 HEARING DATE: 4 July 2018 HEARD AT: Brisbane DECISION OF: Dr J R Forbes, Member ORDERS: The application for leave to appeal is dismissed. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – application for leave to appeal – Minor Civil Dispute – proceedings under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) – failure to commence proceedings within time limited by statute – whether the tribunal has power to extend time – whether the statutory time limit is substantive or procedural – time limit substantive – no power to extend – whether in the absence of jurisdic tio n consent orders may be made – inability of parties to confer jurisdiction by consent – application for leave to appeal dismissed Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 31, s 35 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 61 Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 Aramac Constructions Pty Ltd v Queensland Building and Construction Commission [2015] QCAT 364 Australian Education Union v Lawler (2008) 169 FCR 327; [2008] FCAFC 135 -- 1 of 5 -- 2 David Grant & Co Pty Ltd v Westpac Banking Corporation & Ors (1995) 184 CLR 265 Hope & Anor v Brisbane City Council [2013] QCA 198 McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 Neill v Legal Profession Complaints Committee [2011] WASCA 48 Queensland Building and Construction Commission v Watkins [2014] QCA 172 R v Moore; Ex parte Australian Workers’ Union (1976) 11 ALR 449 Watkins v Queensland Building Services Authority [2013] QCAT 535 REPRESENTATION: Applicant: Self-represented Respondent: Self-represented APPEARANCES: 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 [1] The applicant, Kenneth James Bull seeks leave to appeal from the primary decision of an adjudicator, delivered on 27 September 2017. [2] The applicant then sought a fencing order against the respondent Porteus, under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (‘the fencing Act’). [3] Section 31 of the fencing Act relevantly provides: Notice to contribute for fencing work (1) An owner may require the adjoining owner to contribute … to the carrying out of fencing work for a dividing fence by giving a notice to the adjoining owner. (2) The notice must be in the approved form and state the following— (a) a description of the land on which the fencing work is proposed to be carried out and, if the fencing work is to construct or replace a dividing fence, the line on which it is proposed to construct or replace the fence; (b) the type of fencing work proposed to be carried out; (c) the estimated cost ... ... (6) If, within 1 month after the notice is given, the adjoining owners have not agreed about the proposed fencing work to be carried out and their -- 2 of 5 -- 3 contributions to the proposed fencing work, either adjoining owner may, within 2 months after the notice is given, apply to QCAT for an order under section 35. [4] Section 35 lists eleven types of orders that QCAT may make. [5] It is undisputed that Bull’s application to QCAT was not made within the time limited by section 31(6), above.1 [6] The adjudicator held that, in view of non-compliance with the section 31(6) time limit, the tribunal had no jurisdiction to make the orders sought, and no power to extend time.2 [7] Later, however, the Member proceeded to make orders ‘by consent’, including an order that a dividing fence be constructed within six weeks of the parties’ receipt of a surveyor’s report.3 [8] The applicant now seeks leave to appeal from that decision on these grounds: [i] Consent orders were made to replace missing side wooden fence (replicating previous) and for cadastral survey – okay [sic], however, when (unsought) amended orders arrived they are inconsistent – consistency required please on payments/dates. [ii] Tribunal ruled it had no jurisdiction to hear matter because I was out of time ... this is an error of law, an appellable (sic) point. I would like QCAT to hear the part of the matter that does not relate to the consent orders. [iii] Block wall between buildings is not a retaining wall but a dividing fence ... over which QCAT has jurisdiction. I would like QCAT to hear and determine on it please. [9] In support of his second ground of appeal the applicant relies on section 61 of the QCAT Act which materially provides: Relief from procedural requirements (1) The tribunal may, by order— (a) extend a time limit fixed for the start of a proceeding by this Act or an enabling Act; or (b) extend or shorten a time limit fixed by this Act, an enabling Act or the rules; or (c) waive compliance with another procedural requirement under this Act, an enabling Act or the rules. [10] This submission predicates that section 31(6) of the fencing Act is merely procedural, not a substantive provision defining the limits of the right to invoke the statutory 1 Transcript of hearing 27 September 2017 page 10 lines 22-26; application for leave to appeal filed 24 October 2017 (grounds) line 1. 2 Transcript page 7 line 40, page 8 lines 4, 23, 34-35, page 27 line 43: ‘If you don’t agree, I’ll dismiss the application to local jurisdiction’. 3 Full details of the orders appear at pages 33-34 of the transcript. -- 3 of 5 -- 4 jurisdiction of the tribunal. It is to be noted that the section is focused on procedural requirements, implying that there may be other requirements, including some time limits that are more than procedural. [11] I dealt with a similar provision in Watkins v Queensland Building and Construction Services.4 In that case the legislation prohibited the tribunal from reviewing a decision of the authority if the application for review was not made within 28 days of service of the decision upon the applicant. I held that the time limit was substantive, not procedural, and that section 61 of the QCAT Act could not be applied to change it. That decision was upheld by the Court of Appeal,5 and followed in Aramac Constructions Pty Ltd v Queensland Building and Construction Commission.6 [12] The special remedy created by section 31(6) defines and limits the jurisdiction of the tribunal and an applicant’s cause of action. It is a mandatory, substantive rule of law that the tribunal has no power to repeal or amend. This type of statute was has been described by members of the High Court as creating:7 ... a right of limited duration so that, after the expiry of the time prescribed, the right ceases to exist for any purpose. Such a statute is substantive in nature. And in an earlier High Court case: When the legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised, and the conditions and restrictions which must be observed [in so doing], it excludes the operation of general expressions [such as QCAT Act, s 61] ... which might otherwise have been relied on for the same power.8 [13] The same principle was applied in David Grant & Co Pty Ltd v Westpac Banking Corporation & Ors to deny the appellant a waiver of ‘procedural irregularities’.9 Gummow J observed: As a general precept, it is inappropriate to read provisions which confer jurisdiction ... by the making of implications or impositions not found in the express words of the legislative provision. [14] The adjudicator did not err in his ruling that section 61 of the QCAT Act may not be used to vary the time limit imposed by section 31(3) of the fencing Act. However, it is a question whether the latter provision can effectively be avoided by the making of orders by consent. 4 [2013] QCAT 535. 5 Queensland Building and Construction Commission v Watkins [2014] QCA 172. See also Hope & Anor v Brisbane City Council [2013] QCA 198. 6 [2015] QCAT 364, [5]. 7 McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1, 42-43 (Brennan, Dawson, Toohey and McHugh JJ). 8 Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1, 7 (Gavan Duffy CJ and Dixon J). 9 (1995) 184 CLR 265, 275-276. -- 4 of 5 -- 5 [15] In my respectful view, the answer to that question is ‘No’. As the applicant himself remarks: ‘Despite finding it had no jurisdiction to hear, [the] tribunal found it had jurisdiction to make consent orders. That is incongruous.’10 [16] If that were indeed the case, it would amount to the parties’ consent creating jurisdiction that did not otherwise exist. In law, that is impossible.11 ‘The jurisdictio n of a statutory tribunal cannot be enlarged by the consent of the parties.’12 [17] It follows that the present ‘consent orders’ were not validly made. Possibly the parties, if they wished, could enter into a contract, enforceable at common law, containing similar provisions. [18] However, this tribunal need only deal with the question before it, namely: I would like QCAT to hear the part of the matter [i.e. a block wall between the buildings] that does not relate to the consent orders.13 [19] Assuming, without deciding, that the said ‘block wall’ is a dividing fence, no order may be made about it, for the reasons set out above. [20] Accordingly the application must be dismissed. Order [21] The application for leave to appeal is dismissed. 10 Grounds seeking leave to appeal, paragraph 4. 11 Neill v Legal Profession Complaints Committee [2011] WASCA 48 at [7]: ‘Parties cannot by consent confer jurisdiction on a tribunal if none exists.’ See also R v Moore; Ex parte Australian Workers’ Union (1976) 11 ALR 449, 453 (High Court of Australia). 12 Australian Education Union v Lawler (2008) 169 FCR 327; [2008] FCAFC 135, [185]. 13 Application for leave to appeal page 3. -- 5 of 5 --