Bull v Porteus

Case [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 jurisdiction 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
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…

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Details
AGLC
Bull v Porteus [2018] QCATA 100
Case
[2018] QCATA 100
Decision Date

CaseChat Overview and Summary

Bull v Porteus involved a dispute between neighbours over a dividing fence and trees, under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld). The applicant, Bull, sought leave to appeal from a decision of the Magistrates Court, which had dismissed his application to extend the time limit for commencing proceedings under the Act. The nature of the dispute was a procedural one, focusing on the interpretation and application of the statutory time limit for initiating proceedings.

The key legal issue before the court was whether the time limit for commencing proceedings under the Act was substantive or procedural. If the time limit was procedural, the court could have the power to extend it. Conversely, if the time limit was substantive, the court lacked the authority to extend it. The court also considered whether, in the absence of jurisdiction, consent orders could be made to allow the proceedings to proceed. This raised the question of whether the parties could confer jurisdiction by consent.

The court held that the time limit was substantive and, therefore, the tribunal did not have the power to extend it. The court further determined that the inability of the parties to confer jurisdiction by consent meant that consent orders could not be made. As a result, the application for leave to appeal was dismissed. The court found that the statutory time limit was a fundamental aspect of the statutory scheme and could not be altered or extended by the court. This decision underscored the importance of adhering to statutory time limits in civil proceedings.

Orders

Orders of the court

The application for leave to appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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