Evans v McNamara [2013] QCATA 173

CITATION: Evans v McNamara [2013] QCATA 173 PARTIES: Mr Daryl Evans as agent for Peter and Karen Evans (Applicant/Appellant) V Ms Leanne McNamara (Respondent) APPLICATION NUMBER: APL126 -13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe, Senior Member DELIVERED ON: 17 June 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: MINOR CIVIL DISPUTE – fences – where application to remove things from fence – where 20 year old fence – where fence allegedly damaged by trees – where tree dispute already dismissed by tribunal – where mediation agreement provided for certain work to be done – whether tribunal has jurisdiction to determine dispute PROCEDURE – where cross application in wrong form – where cross application filed late – whether tribunal should have considered cross application Queensland Civil and Administrative Tribunal Act 2009 ss 3(b), 4(c), 61(1)(c), 62 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 ss 16, 21(1), 27, 35(1), Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Chambers v Jobling (1986) 7 NSWLR 1 -- 1 of 5 -- 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 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 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 APPEARANCES and REPRESENTATION The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION [1] The Evans and Ms McNamara are not happy neighbours. They have spent years, and much time and energy, bickering over the dividing fence and trees located at or near their common boundary. [2] Ms McNamara filed an application about the trees. It was dismissed because the tribunal did not have jurisdiction. [3] Mr Evans filed an application for orders about the fence. An adjudicator ordered the construction of 31 metres of Colorbond fencing along the boundary. He ordered that Ms McNamara pay $1,649 towards the cost of the new fence and Peter and Karen Evans, whom Mr Evans represents, pay $1,031 towards the cost of the fence. [4] Mr Evans wants to appeal that decision. He says that the learned Adjudicator wrongly allowed Ms McNamara to file a counter application. He says that the learned Adjudicator failed to take action to remove the items illegally attached to the existing fence. He says that the learned Adjudicator wrongly decided that a mediation agreement the parties signed in 2011 is legally binding and disputes about it can only be heard in a higher court. Mr Evans says that the learned Adjudicator was wrong in deciding that the chain wire fence was not a sufficient fence. [5] There is a preliminary issue. The applicants in the original claim are Peter and Karen Evans. The learned Adjudicator‟s order is against those parties. Mr Evans had leave to represent Peter and Karen Evans but he is not the proper applicant. By letter of 1 June 2013, Peter and Karen Evans advised the tribunal that Mr Evans acts as their agent. It is necessary, therefore, to amend the applicants to Peter and Karen Evans. [6] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary -- 2 of 5 -- 3 decision?1 Is there a reasonable prospect that the applicant will obtain substantive relief?2 Is leave necessary to correct a substantial injustice caused by some error?3 Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?4 [7] Mr Evans has filed fresh evidence with the application for leave to appeal. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined5. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Mr Evans have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?6 [8] The fresh evidence from Mr Evans relates to further work undertaken after the hearing. It could not have been available at the hearing. However, for reasons that follow, I find that the fresh evidence will not have an important impact on the result of the case. I do not allow the fresh evidence and I will decide the application for leave to appeal on the evidence before the learned Adjudicator. [9] The tribunal is required to deal with matters in a way that is accessible, fair, just, economical, informal and quick.7 It must ensure proceedings are conducted in an informal way that minimises costs to parties.8 It may waive compliance with a procedural requirement.9 It may do whatever is necessary for the speedy and fair conduct of a proceeding.10 The clear intention of the Queensland Civil and Administrative Tribunal Act 2009 is that the tribunal need not insist on strict compliance with its rules and forms. [10] Although Ms McNamara‟s application was late, the transcript shows that both parties were ready to, and did, give evidence and make submissions on this issue. I am satisfied that Mr Evans was not disadvantaged by the late application by Ms McNamara. The fact that she used the wrong form is not a reason to dismiss it as being improperly made. [11] Mr Evans‟ claim was for the removal of things attached to the dividing fence. “Fencing work” includes the maintenance of a dividing fence.11 I am satisfied that Mr Evans‟ application involves fencing work. Once the tribunal has jurisdiction, it may make a range of orders12, including the 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 2 Cachia v Grech [2009] NSWCA 232 at 2. 3 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 4 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. 5 ss 137 and 138 QCAT Act 6 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408 7 Queensland Civil and Administrative Tribunal Act 2009 s3(b) 8 s4(c) 9 s61(1)(c) 10 S62(1) 11 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 s16 12 NDR Act s35(1) -- 3 of 5 -- 4 construction of a dividing fence. It may also order that a fence be constructed on a particular alignment. Therefore, I do not accept that Ms McNamara‟s claim had “nothing to do” with Mr Evans‟s claim. Both claims related to the fence and it was appropriate for the learned Adjudicator to hear them both. [12] The outcome of the hearing may have been significantly different from Mr Evans‟s claim but it did not take Mr Evans by surprise. As I have already noted, the parties discussed options for that part of the fence. Mr Evans conceded that it was old, poorly constructed and leaning.13 Before his final decision, the learned Adjudicator ordered the parties to provide quotes for the repair or replacement of the fence. There is no failure to provide natural justice in the learned Adjudicator‟s actions. [13] The appeals tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.14 An appellate tribunal may interfere if the conclusion is „contrary to compelling inferences‟ in the case.15 As the High Court said in Fox v Percy: In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.16 [14] The learned Adjudicator did not apportion the costs of the fence by reference to any damage by trees. He started with the rule that each party should contribute equally to the cost of the fence17 and then adjusted the costs in Mr Evans‟s favour by requiring Ms McNamara to pay for 3 panels without contribution. The learned Adjudicator‟s decision was entirely appropriate and I can find no reason to come to a different view. [15] Mr Evans says that a chain wire fence is a sufficient fence. The learned Adjudicator pointed out18 that there had been a Colorbond fence for over 20 years and neither party had objected to it previously. The parties are in almost constant conflict and privacy is an issue at that part of the boundary. The learned Adjudicator was entitled to find that a Colorbond fence was a sufficient fence and I can find no compelling reason to come to a different view. [16] Mr Evans says that the mediation agreement about the fence is not legally enforceable because an agreement cannot be made if it contravenes statute law. An owner cannot attach things to a dividing fence without the adjoining owner‟s consent.19 It is, therefore, implicit in the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 that parties can make an 13 Transcript at 36:54. 14 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 15 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 16 Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ. 17 NDR Act s21(1). 18 Evans and Anor v McNamara [2013] QCAT 80 at [19] 19 NDR Act s27. -- 4 of 5 -- 5 agreement about attaching things to a dividing fence. Mr Evans‟ second argument must fail. [17] The learned Adjudicator decided that the validity of the mediation agreement, or whether the parties had complied with it, was not within his jurisdiction. I agree with his assessment. The tribunal only has the jurisdiction given to it by legislation. The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 does not give the tribunal, in its minor civil disputes jurisdiction, the ability to determine the validity of agreements about fences and trees. The Queensland Civil and Administrative Tribunal Act 2009 does not give the tribunal, in its minor civil disputes jurisdiction, that power. The tribunal has already determined that it does not have jurisdiction to make orders about trees on Mr Evans‟ land and Ms McNamara did not appeal that decision. The learned Adjudicator was correct in his assessment that the validity of the mediation agreement must be considered elsewhere. [18] There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Adjudicator was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused. -- 5 of 5 --