Deveze v Suosaari

Case [2021] QCATA 106

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Deveze v Suosaari  [2021] QCATA 106
PARTIES: MICHELLE FRANCOISE LOUISE DEVEZE

(applicant)

v
LEONARD  SUOSAARI & MYRA SUOSAARI

(respondents)

APPLICATION NO:

APL315-20

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON: 

25 August 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes

ORDERS:

The application for leave to appeal is dismissed

CATCHWORDS:

APPEAL – APPLICATION FOR LEAVE TO APPEAL – neighbourhood dispute – dividing fence – where applicant made repairs to fence – whether urgent fencing work – where applicant sought $2,342.50 contribution from respondent neighbours – where applicant proceeded with fencing work without agreement and before tribunal hearing – whether completion of fencing work premature – whether applicant entitled to recover contribution in the circumstances – where tribunal dismissed claim for serious procedural irregularities – whether irregularities merely procedural and non-substantial – whether fresh evidence available - no appellable error shown

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 12, s 31, s 32, s 91
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 32
Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1

Aurisch v Fong and Anor  [2020] QCAT 380

Coulton v Holcombe (1986) 162 CLR 1

Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359
Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330
International Professional Services v Tritone Nominees Pty Ltd [2011] QCATA 332
Queensland Building Services Authority v Watkins  [2014] QCA 172
QUYD Pty Ltd v Marvass Pty Ltd  [2009] 1 Qd R 41; [2008] QCA 257

Robinson v Corr [2011] QCATA 302

Watkins v Queensland Building Services Authority [2013] QCAT 535

APPEARANCES & REPRESENTATION:

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

Background

  1. The parties occupy adjoining rural properties at Crohamhurst, in the Sunshine Coast hinterland. At the relevant time the applicant (`Devize’) used her land as a cattle stud. The respondents (`the Suosaaris’) grazed no cattle of their own.[1]

    [1]Reasons for Decision (`RD’) 23 September 2020 paragraph [11(b)].

  2. Initially the Suosaaris allowed Devize to agist her animals on their property, but in 2015 that permission was withdrawn. Nevertheless, to the annoyance of the Suosaaris, and despite a decrepit boundary fence[2], Devize’s cattle periodically strayed onto their land.

    [2]The disrepair of the fence is described by Devize in the transcript of hearing 12 August 2020 (`T’) at page 5 line 30 and page 7 lines 24-27.

  3. So Devize decided to renovate the fence. She obtained a quotation from a fencing contractor, gave a copy to the Suosaaris, and pursuant to section 31 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (`NDA’) asked them to bear half the cost ($2342.50)[3]. The Suosaaris refused to contribute.

    [3]Based on a contractor’s quotation of $4,685, dated 28 October 2019: Transcript of hearing 12 August 2020…

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AGLC
Deveze v Suosaari [2021] QCATA 106
Case
[2021] QCATA 106
Decision Date

CaseChat Overview and Summary

The case of Deveze v Suosaari was heard in the Queensland Civil and Administrative Tribunal (QCAT) and subsequently appealed. The dispute involved a neighbourhood conflict over a dividing fence between the parties, Deveze and Suosaari. Deveze undertook repairs to the fence without reaching an agreement with Suosaari and proceeded with the work before a scheduled tribunal hearing. Subsequently, Deveze sought a contribution of $2,342.50 from Suosaari towards the cost of the repairs. The tribunal dismissed Deveze's claim, citing serious procedural irregularities. Deveze appealed this decision, seeking leave to appeal the tribunal's ruling.

The central legal issues before the court were whether Deveze's procedural errors were merely non-substantial or if they precluded her from recovering the contribution sought. Specifically, the court had to determine whether the applicant complied with the statutory requirements under the Neighbourhood Disputes Act and whether the procedural irregularities were sufficient to warrant a dismissal of her claim. Furthermore, the court examined whether fresh evidence was available that could have altered the tribunal's decision.

The court found that the procedural irregularities were substantial and non-compliant with the mandatory preconditions set out in the Neighbourhood Disputes Act. Deveze's actions in proceeding with the fencing work without agreement or a tribunal order violated both section 31(7) of the NDA and the sub judice rule. Consequently, the tribunal's decision to dismiss Deveze's claim was upheld as there was no appellable error shown in the tribunal's ruling. The court concluded that the procedural errors were significant and fundamental, preventing Deveze from successfully pursuing her claim for contribution.

The court dismissed the application for leave to appeal, affirming the tribunal's decision. The reasoning was that Deveze had not demonstrated any arguable error of law that warranted an appeal. The purpose of an application for leave to appeal is not to conduct a retrial or second guess the tribunal's decision but to identify errors of law that are reasonably arguable. Since Deveze failed to meet this threshold, the application was dismissed. The court emphasized the importance of adhering to legislative requirements and the procedural integrity of the tribunal process.

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

Next, it was submitted that the applicant’s procedural errors do not detract from substantial compliance with the legislation.[23] This courageous submission contends, unsuccessfully, with the facts that there is no compliance with either section 31(7) or the sub judice principle. Furthermore, those rules are mandatory; they are not merely procedural requirements that the Tribunal may waive in its discretion.[24] Unless and until they are observed, there is no valid application to adjudicate, and hence no jurisdiction. I reject this submission.[23]Submissions by Devize 31 March 2021. Cf NDA s 91: ` Substantial compliance with any agreement, notice or order mentioned in this Act is adequate for this Act.’[24]Compare the mandatory preconditions in Watkins v Queensland Building Services Authority [2013] QCAT 535; affirmed [2014] QCA 172; Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7.Fresh evidence? Third, Deveze submits that there is fresh evidence in the form of an email sent to her on 28 March 2020.[25] The latter date is some four month before the date of trial. Fresh evidence must be material that was not reasonably available at the time of the trial and which, if admitted is reasonably likely to altered the result. The submission is hopeless, and must be rejected.[25]Submission dated 18 February 2021.Conclusion The applicant for leave has not demonstrated any appellable error in the decision under review. Accordingly the application for leave must be dismissed.ORDERThe application for leave to appeal is dismissed.

Decision

Reasons for decision

But in this case we not only have no agreement, but also no overriding order of the Tribunal. It is a fundamental principle – and one that needs no particular statutory prohibition to support it – that once a legal issue is submitted to a court or tribunal neither party may take the law into his own hands, or take the court for granted, by pre-empting its decision. So ultimately it is the sub judice rule, rather than section 31(7), that stands adamantly in Devize’s way.Primary decision It follows, in my view, that the primary tribunal was entitled, indeed bound to decide that:[A]s Ms Devize proceeded with the fencing work without agreement or a Tribunal order, she is prevented from claiming that contribution by virtue of section 31(7) of the NDA and on that basis[14] her application must be dismissed.[15][14]Not to mention the sub judice rule.[15]RD page 5 paragraph [21]. In other words, the reason for rejection is that Ms Devize did not follow the procedures mandated by the NDA and governing applications for contributions to the costs constructing or maintaining a dividing fence. Doubtless Devize acted in good faith but the relevant legislation is an insuperable obstacle.Limits of leave application Ms Devize has not identified any appellable error of law that is reasonably arguable. That is the true, and indeed the only purpose of an application for leave to appeal.[16] An application of this kind is not an opportunity to conduct a retrial, or to `second guess’ the primary tribunal’s decision, but that is what each party’s submissions really amount to.[17] Unfortunately, it is common error of self-represented litigants to make those assumptions. However, the trial is not merely a `preliminary skirmish’.[18] The very point of the `leave to appeal hurdle’ is to curb attempts to misuse appeals as retrials or devices of delay, or to introduce evidence or arguments that might have been led in the first place, but in fact were not. It is the legislature’s intention that minor civil claims be resolved economically and speedily.[19] It is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done.[20][16]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 at [6]; Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359 at [18]; Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330 at [19]; International Professional Services v Tritone Nominees Pty Ltd [2011] QCATA 332.[17]Deveze in written submissions dated 8 March 2021 and 31 March 2021; Suosaaris in submissions dated 4 and 8 March 2021. [18]Coulton v Holcombe (1986) 162 CLR 1 at 7 per Gibbs CJ, Wilson, Brennan and Dawson JJ.[19]QCAT Act s 3(b).[20]Robinson v Corr [2011] QCATA 302 at [7]. Cf the application for leave to appeal filed herein on 9 October 2020: `I wish to appeal this decision because I believe that [it] is not fair and just’. `I do not consider this to be a fair and just outcome’.Defences suggested

Ratio Decidendi

Legal Principle Established

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