Dorge v Dicker [2016] QCATA 96

CITATION: Dorge v Dicker [2016] QCATA 96 PARTIES: MAXWELL GRANT DORGE (Applicant/Appellant) v KATHRYN DICKER (Respondent) APPLICATION NUMBER: APL362-15 MATTER TYPE: Applications and appeals HEARING DATE: 17 February 2016 HEARD AT: Brisbane DECISION OF: Justice Carmody DELIVERED ON: 9 March 2016 DELIVERED AT: Brisbane ORDERS MADE: THE APPEAL TRIBUNAL ORDERS THAT: 1. Leave to appeal is granted. 2. Appeal is allowed. 3. The matter is returned for reconsideration in light of this decision and on the merits under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011. CATCHWORDS: APPEAL – LEAVE TO APPEAL – DISMISSAL OF MINOR CIVIL DISPUTE – DIVIDING FENCES - Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 application – where the application was struck out by the magistrate for lack of jurisdiction – where the magistrate found the adjoining properties in question used for both agricultural and pastoral use consisted of parcels of agricultural land and therefore excluded from the Act – whether “agricultural land” loses its “agricultural” quality if it is also put to another use (e.g. pastoral use) – where the applicant claimed the magistrate deprived him of his litigation rights without a hearing on the merits. -- 1 of 6 -- 2 Dividing Fences Act 1953 (rpld) Land Valuation Act 2010 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, ss 7, 8, 11, 15, 18, 22, 33, 35 Queensland Civil and Administrative Tribunal Act 2009, ss 11, 12 APPEARANCES and REPRESENTATION: APPLICANT/APPELLANT Self-represented. RESPONDENT Self-represented. REASONS FOR DECISION [1] This application is for leave to appeal against the dismissal of a minor civil dispute under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (the Neighbourhood Disputes Act) for want of jurisdiction. [2] At issue is whether the tribunal (QCAT) is excluded by s 8(3) of the Neighbourhood Disputes Act from hearing and deciding the applicant’s dividing fences claim because the land in question consists of two adjoining parcels of agricultural land. [3] Leave should be granted because the application raises the meaning of a statute that has not yet been authoritively ruled on by a court or, as far as I am aware, QCAT. Also the appeal should be allowed because in declining to exercise its jurisdiction in this case the tribunal made an appealable error causing substantial injustice to the applicant by depriving him of his litigation rights without a hearing on the merits. [4] The vitiating error stems from confusion about the use of the applicant’s land and the meaning and effect of s 8(3) of the Neighbourhood Disputes Act. QCAT’s original jurisdiction [5] QCAT is conferred with jurisdiction by s 11 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) to hear and decide the minor civil disputes mentioned in s 12 and the Schedule. [6] The dividing fences jurisdiction is exercisable if a party to a dispute applies for an order to fence under the Neighbourhood Disputes Act.1 1 Section 12(1) QCAT Act. -- 2 of 6 -- 3 [7] The tribunal also has jurisdiction to hear and decide any matter arising under chapter 2, under s 33 of the Neighbourhood Disputes Act and may make any of the orders listed in s 35. The Neighbourhood Disputes Act [8] The Neighbourhood Disputes Act repealed and replaced the Dividing Fences Act 1953 (the 1953 Act) to deal, regulate and resolve disputes about dividing fences and trees between neighbours. [9] The objects are stated in s 3 as (a) providing rules about each neighbour’s responsibility for dividing fences to avoid disputes arising and (b) facilitate the resolution of any dispute that does arise between them. If neighbours cannot resolve a dividing fence issue either may apply to QCAT2 to deal with it under chapter 2 of the Neighbourhood Disputes Act. [10] Under s 7 there must be a sufficient dividing fence between two parcels of adjoining land. [11] Adjoining land is the land on either side of a common boundary.3 Either adjoining owner can request a dividing fence be erected and maintained by equal contributions.4 [12] A fence is a structure or other feature separating the land of adjoining owners and includes a cattle grid.5 [13] A dividing fence means a fence on the common boundary of adjoining lands or separating them on a different line because natural or artificial physical features make it impracticable to do so. [14] The term “sufficient dividing fence” has a defined meaning by reference to height and materials. [15] The matters for QCAT’s consideration in deciding whether a dividing fence is sufficient or not are listed in s 36 including the purposes for which the adjoining land is used. [16] The Neighbourhood Disputes Act expressly does not apply to adjoining land consisting of two parcels of agricultural land6 but does apply to pastoral land with a common boundary. [17] Pastoral land, to which chapter 2 of the Neighbourhood Disputes Act applies, is rural land under the Land Valuation Act 2010 of more than .5 of a hectare used for grazing stock on a commercial basis regardless of whether the land is also used for residential purposes. 2 Section 7(4) of the Neighbourhood Disputes Act; s 12(1) and (4)(g) of the QCAT Act. 3 Section 15(3) of the Neighbourhood Disputes Act. 4 Section 7(2) of the Neighbourhood Disputes Act. 5 Section 11 of the of the Neighbourhood Disputes Act. 6 Section 8(3) of the Neighbourhood Disputes Act. -- 3 of 6 -- 4 [18] Agricultural land to which chapter 2 of the Neighbourhood Disputes Act does not apply is rural land of more than half a hectare used for cultivating crops on a commercial basis regardless of whether the land is also used for residential purposes.7 The context [19] The parties own adjoining rural land on the Dalby-Cooyar Road at Kaimkillenbun. The properties Earlslea (the applicant) and Dunbar (the respondent) are well in excess of half a hectare in area. Both are used for cultivating crops and, after harvest, grazing livestock – sheep (the applicant) and cattle (the respondent) - on a commercial basis. [20] A strip of gazetted road (the old road) bordering the properties which had been “temporarily” closed for 58 years was permanently closed by the Department of Natural Resources and Mines in September 2013 and then leased back to the respondent. [21] On 8 May 2015 the appellant served a notice to contribute to the repair of a dilapidated fence along the old road. The respondent objected on the grounds that QCAT lacks jurisdiction to decide disputes over fences on adjoining agricultural land because of s 8(3) of the Neighbourhood Disputes Act. [22] Thus, the question to be answered is whether for the purposes of QCAT jurisdiction under chapter 2, “agricultural land” loses it “agricultural” quality if it is also put to another use (e.g. pastoral use). The meaning of “agricultural land” [23] The appellant contends that s 8(3) was not intended to exclude the operation of chapter 2 in the case of mixed farming land or lots used for the dual purpose of commercial cropping and grazing. [24] The respondent, by contrast, argues that chapter 2 does not apply because at least one of the substantial uses of the adjoining lands is agricultural and that the alternative pastoral use is immaterial to any liability to fence. [25] Although diametrically opposed neither interpretation is demonstrably right nor manifestly wrong. Either might be correct. However, in my view, the applicant’s is preferable. It is more consistent with the plain meaning of the words of s 8(3) and better promotes the stated purposes of the legislation. This is because the common boundary may not be sufficient for these two parcels of rural land if it does not adequately prevent stock from wandering at all times. [26] This construction gives the words of s 8(3) what I discern to be the meaning and effect the legislature intended them to have. Admittedly there will be occasions where this reading will be highly inconvenient and potentially 7 Section 18(1) of the of the Neighbourhood Disputes Act. -- 4 of 6 -- 5 costly e.g. where the common boundary is measured in 10’s or 100’s of kilometres but that does not justify denying or defeating its apparent intention when there is no more compelling rival construction available. [27] Land is characterised and distinguished for dividing fences purposes by its use. Rural land includes both pastoral and agricultural but the term agricultural land does not encompass pastoral land. It is specifically confined to commercial crops. [28] In reference to what is now s 18 of the Neighbourhood Disputes Act the Explanatory Notes (EN) to the Neighbourhood Disputes Resolution Bill 2010 under the heading: Meaning of agricultural land, pastoral land, prescribed rural land and residential land “This clause defines these types of land uses, which are important for other clauses of the bill. It is clear that a fence that suffices to divide two relatively small residential blocks can be quite different from the fence required for vast kilometres of pastoral land. These definitions are needed so that this bill will serve the needs of all Queenslanders.” [29] Notably, an adjoining owner of land consisting of a mixed farm and a housing estate or road that previously consisted of two mixed farms is liable under the legislation to contribute to a dividing fence that would have been sufficient for the two parcels before the residential development.8 [30] At page 15 it is pointed out that “in the case of two parcels of pastoral land, the fence must be sufficient to restrain livestock of the type run on each of the parcels”. [31] And significantly: “It is not intended that the owner of agricultural land should be liable to contribute to a fence at all, if a fence has not been needed previously.” Conclusion [32] The text and context of ss 8(3) and 18 of the Neighbourhood Disputes Act compel the conclusion that a distinction is intended to be made and maintained between pastoral and agricultural land based on a defined use and the practical purpose of a dividing fence in rural settings. That purpose in the case of adjoining pastoral land is to keep stock from straying between them or onto a road. Agricultural land is in a different position. Unfenced agricultural land obviously does not create the same risks or mischiefs as unfenced pastoral land to neighbours or the general public. 8 Section 22(2) of the Neighbourhood Disputes Act. -- 5 of 6 -- 6 [33] Accordingly, where, as here, the land in issue is as much pastoral as agricultural chapter 2 of the Neighbourhood Disputes Act, in my opinion, applies regardless of whether the alternative uses are “primary”, “predominantly”, “substantially” or only in part.9 [34] The respondents claim that the land in dispute does not need a fence to restrain stock any more now than it has in the past is a disputed question of fact for the tribunal in its original jurisdiction to decide not for me. [35] Therefore, the matter will be returned for reconsideration in light of this decision and on the merits under the Neighbourhood Disputes Act jurisdiction. 9 cf s 18(3) – (4) of the Neighbourhood Disputes Act. -- 6 of 6 --