Cowan v McKinnon

[2011] QCA 154

SUPREME COURT OF QUEENSLAND

CITATION:

Cowan v McKinnon & Anor [2011] QCA 154

PARTIES:

ANTHONY JOHN COWAN
(applicant/appellant)
v
JULIE NOELA MCKINNON
(first respondent)
COMMONWEALTH BANK OF AUSTRALIA
(second respondent/not a party to the appeal)
NATIONAL AUSTRALIA BANK
(third respondent/not a party to the appeal)
HERBERTON SHIRE COUNCIL
(fourth respondent)

FILE NO/S:

Appeal No 9108 of 2010
SC No 102 of 2007
SC No 530 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time/General Civil Appeal
Miscellaneous Application - Civil

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

1 July 2011

DELIVERED AT:

Brisbane

HEARING DATE:

26 May 2011

JUDGES:

Margaret McMurdo P, Chesterman JA and Cullinane J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Application to adduce further evidence refused;1.    

Application for an extension of time in which to appeal refused;2.    

Applicant is to pay the fourth respondent’s costs of the application.3.    

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where part of a dwelling on the applicant’s land encroached on the lands of the first respondent – where the judge at first instance ordered for the encroachment to be removed – where the applicant was almost three years out of time to appeal – where the orders sought in notice of appeal were against a non party – where application refused

APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – FRESH EVIDENCE – AVAILABILITY OF EVIDENCE AT TRIAL – GENERALLY – where the fresh evidence sought to be adduced was an affidavit of a non party and the fourth respondent’s records of the relevant land – where no reason why the evidence could not have been called at first instance – where application denied

Property Law Act 1974 (Qld), Pt 11

COUNSEL:

The applicant appeared on his own behalf
The first respondent appeared on her own behalf
M A Jonsson for the fourth respondent

SOLICITORS:

The applicant appeared on his own behalf
The first respondent appeared on her own behalf
MacDonnells Law for the fourth respondent

1. MARGARET McMURDO P: I agree with Cullinane J's reasons for refusing this application for an extension of time to appeal and with the orders proposed.

1. CHESTERMAN JA: I agree with the order proposed by Cullinane J for the reasons given by his Honour.

1. CULLINANE J: On 20 September 2007 the Supreme Court in Cairns delivered a judgment in two applications made under Part 11 of the Property Law Act 1974 as amended.

1. The applications concerned an encroachment on the lands of the first respondent by part of a dwelling on the adjacent land of the applicant.  It also concerned an encroachment of other structures associated with the dwelling.  

1. The applicant was the first to institute proceedings, doing so against the first respondent and thereby seeking an order that part of the land of the first respondent be conveyed to him. 

1. The first respondent then instituted proceedings against the applicant and three other respondents including the Herberton Shire Council which was then the title of the relevant local authority.  I will for convenience refer to the Council as the fourth respondent.

1. The first respondent sought an order that the applicant remove the encroachment from her land.

1. The learned trial judge dismissed the applicant's application and made an order generally in terms which the first respondent had sought.  Part of the order involved the granting of an easement for the benefit of the land of the applicant over so much of the land of the respondent as was required for an existing septic tank and connecting pipelines to the applicant's premises. 

1. The order has been carried into effect so far as the encroaching part of the applicant's buildings has been removed.

1. The applicant filed a notice of appeal on 24 August 2010.

1. The applicant therefore seeks an extension of time within which to appeal.  He is a little under three years out of time. 

1. The first respondent appeared on the telephone on the hearing of the appeal but did not take any active role, relying upon the judgment that had been given.  The fourth respondent was represented and resisted the orders sought.

1. In the notice of appeal the applicant seeks a number of orders against the fourth respondent.  These include an order that the fourth respondent be responsible for the costs of rebuilding that part of the dwelling which had been demolished in accordance with the court’s order.  He also seeks an order that the fourth respondent pay compensation to the applicant in an amount similar to the cost of rebuilding and seeks as well that the fourth respondent be ordered to purchase the lot and that it cease to be able to be used for residential purposes.  The applicant seeks an order that the fourth respondent pay all of the applicant's costs of and incidental to the appeal and the previous appearances before the court.  The other orders sought are in general terms that the orders made by the learned trial Judge be quashed and "Consideration for damages to the Appellant."

1. The fourth respondent was not a party to the applicant's application and thus no orders were sought against it.  This is an insurmountable obstacle to the appeal so far as it seeks orders against the fourth respondent.

1. In the grounds advanced the applicant challenges the course which the learned trial judge followed in allowing the fourth respondent to be excused from any further part in the hearing after it indicated it would abide the order of the court and did not wish to take any active role.

1. Another ground of appeal involved a criticism of the learned trial judge's failure to travel to Mount Garnet and observe the blocks in question.  In addition it was contended that the learned trial judge demonstrated bias towards the applicant in making a finding that the first respondent had met the applicant in the period between May and July 2005, something relevant to an issue raised as to whether the first respondent had at a meeting during that time informed him of the encroachment. 

1. The other grounds concern the fourth respondent.

1. Since the filing of the notice of appeal, the applicant has made an application to be permitted to adduce further evidence.

1. The evidence, the subject of this application, is to be found in an affidavit by one Susan Elizabeth Gaskell, the effect of which is that the applicant was, during the period October 2003 and August 2005, at a country lodge near Tolga, a place on the Atherton Tablelands some distance away Mount Garnet.  The other evidence concerns the fourth respondent's record relating to the relevant land.  These were apparently obtained on the issue of a subpoena in proceedings in the Supreme Court since the order of the court in these matters.

1. Neither of these satisfy the test of fresh evidence.  It is plain notwithstanding the many assertions that the applicant made, that the Council records could have been obtained at any time by the taking of appropriate steps.  Similarly, there is nothing to suggest that the evidence of Ms Gaskell was not available on the hearing of the application.  It is difficult to see in any case that what she says in her affidavit contradicts the finding of the court about the presence from time to time of the applicant at Mount Garnet during the time the first respondent claims she had a conversation with him about the encroachment.

1. As to the complaints about the learned trial judge permitting the fourth respondent to withdraw, the proceedings were proceedings between private parties in relation to an acknowledged encroachment onto the lands of the first respondent by a building substantially on the lands of the applicant.  The course which His Honour took in relation to the fourth respondent is understandable and in any case a matter within the court's discretion.  Similarly the decision made by His Honour not to visit the site is a purely discretionary matter relating to the conduct of proceedings.  The finding of the learned trial judge about the conversation between the period May and July 2005 was a finding of fact based upon the evidence given before him. 

1. Finally it should be noted that apart from some assertions made by the applicant in the course of a somewhat confused and acrimonious address to the court, no satisfactory explanation emerged as to why the applicant did not file a notice of appeal within the time provided for by the rules.

1. In the light of the circumstances set out above, there is no basis for the grant of an extension of time within which to appeal.

1. I would propose the following orders:

1.          The application to adduce further evidence refused;

2.          The application for an extension of time in which to appeal refused;

3.          The applicant is to pay the fourth respondent’s costs of the application.