Findlay v Woodward [2013] QCATA 68

CITATION: Findlay v Woodward [2013] QCATA 68 PARTIES: Mr Warren Rodney Findlay Mrs Kay Barbara Findlay (Appellants) v Mr John Woodward (Respondent) APPLICATION NUMBER: APL189 -12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 6 March 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL - where the appellant sought to rely on new evidence on appeal – whether the evidence should be admitted – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009, s 137, s 138 Chambers v Jobling (1986) 7 NSWLR 1, cited Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, applied Dearman v Dearman (1908) 7 CLR 549, cited Fox v Percy (2003) 214 CLR 118, cited APPEARANCES and REPRESENTATION (if any): 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 (QCAT Act). REASONS FOR DECISION [1] The Findlays live next door to Mr Woodward. He built a 1.8 metre Colorbond fence between the two properties without consulting the -- 1 of 3 -- 2 Findlays. Mr and Mrs Findlay didn‟t like the fence. They thought it was built within their land, rather than on the boundary. They asked the Tribunal to order Mr Woodward to remove the fence and rebuild it on the boundary. A Magistrate, sitting as a Member in the Minor Civil Disputes jurisdiction of the Tribunal, dismissed the Findlays‟ application. [2] They want to appeal that decision. They say that the learned Magistrate gave too much weight to a statement from P W Waterson. They say that his evidence about the parties‟ beliefs is not consistent with their own actions to order a survey plan. They question the relevance of Mr Waterson‟s statement. [3] Because this is an appeal from a decision of the Tribunal in its Minor Civil Dispute jurisdiction, leave is necessary. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error? [4] Mr and Mrs Findlay have asked the Appeals Tribunal to consider a survey report from Sommerfeld Jensen Campbell Pty Ltd dated 20 June 2012. The Appeals Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined.1 Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests.2 Could the Findlays‟ 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? [5] Mr and Mrs Findlay knew that the location of the boundary was a critical fact in this dispute. Their application refers to a survey done in March 2011.3 They told the Tribunal that the fence „must be rebuilt on boundary line first.‟4 The parties attended mediation. The learned Magistrate adjourned the hearing from May to June. At the hearing in May, Mr Findlay told the learned Magistrate that Mr Woodward built the fence in their property and that they had a survey.5 Yet, they did not provide a copy of the survey to the learned Magistrate. Mr and Mrs Findlay have provided no explanation as to why they did not provide a copy of the survey earlier. [6] The new evidence is credible and, if admitted, would have an important impact on the outcome of the case. However, an application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 137 and 138. 2 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. 3 Application filed 15 November 2011, Part B at [5]. 4 Ibid [12]. 5 Transcript of Proceedings, page 2. -- 2 of 3 -- 3 a party‟s case at the initial hearing. I will not consider the new evidence in deciding the application for leave to appeal. [7] Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.6 [8] An appellate tribunal may interfere, however, if the conclusion at first instance is „contrary to compelling inferences‟ in the case.7 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.8 [9] As I have already noted, the learned Magistrate acknowledged that the core of the dispute was whether the fence was on the boundary.9 She was not persuaded by Mr Waterson‟s evidence, even though there was very little evidence to contradict his view. I do not accept that the learned Magistrate gave too much weight to Mr Waterson‟s evidence. Even though he impressed her,10 he did not persuade her. [10] The learned Magistrate did not make an order in favour of Mr and Mrs Findlay because they produced no evidence. The learned Magistrate cannot be criticised for failing to consider evidence she did not have. The learned Magistrate pointed out that there is a process for resolving fencing disputes and that Mr and Mrs Findlay did not follow that process.11 This appeal does not affect their right to start again and follow the correct process. [11] There is nothing in the transcript that persuades me that the learned Magistrate should have taken a different view of the facts. [12] 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; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused. 6 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 7 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 8 Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ. 9 Transcript of Proceedings, page 21. 10 Ibid. 11 Ibid. -- 3 of 3 --