Drinan v Dawson

[2014] QCATA 168

CITATION: Drinan v Dawson [2014] QCATA 168

PARTIES:	Helen Margaret Drinan (Applicant/Appellant)
v
Jenette Mary McGregor Dawson (Respondent)

APPLICATION NUMBER: APL465 -13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Thomas, President

DELIVERED ON: 7 July 2014

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The application to be represented is refused.

2.    The application for leave to appeal is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where applicant sought order in tribunal to demolish fence – where Magistrate found fence not a dividing fence – whether tribunal has jurisdiction – whether grounds for leave to appeal

Neighbourhood Dispute Resolution Act (Dividing Fences and Trees) Act 2011 (Qld), s 11(1),        s 12(1)-(2), s 13(1)(a)(i), s 38, s 39, s 94
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 142(3)(a)(i)

Chambers v Jobling (1986) 7 NSWLR 1, cited
Dearman v Dearman (1908) 7 CLR 549, cited
Fox v Percy (2003) 214 CLR 118, cited
Pickering v McArthur [2005] QCA 294, applied

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. Ms Drinan and Ms Dawson are neighbours. Ms Dawson built a fence that obstructs causal surveillance of Ms Drinan’s home and obstructs the view from her fourth bedroom. Ms Drinan wanted the tribunal to order the removal of the fence. A Magistrate, sitting as a member of the tribunal dismissed Ms Drinan’s claim.

2. Ms Drinan wants to appeal that decision on the bases that the learned Magistrate had to take time to read the legislation before he could proceed. She wants to “use from the Act” sections 11(1), 12(1) - (2), 13(1)(a)(i), 38, 39 and 94. She also refers to the unique nature of her street, where the common boundary is also her frontage.

3. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeal tribunal applies when considering an application for leave to appeal are derived from numerous authorities, which state in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[1]

   [1][2005] QCA 294 at [3].

4. The minor civil disputes jurisdiction covers many acts and legal concepts. It would be surprising if the learned Magistrate was familiar with all of the law, without needing to read, and refer to, the particular Act in question. There can be no criticism of the learned Magistrate in taking the time and trouble to make sure he considered the relevant provisions of the Neighbourhood Dispute Resolution Act (Dividing Fences and trees) Act 2011 (Qld) before he made a decision.

1. The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[2]  An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[3] 

   [2]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.

   [3]Chambers v Jobling (1986) 7 NSWLR 1 at 10.

1. The learned Magistrate dismissed Ms Drinan’s claim because the fence was not constructed on the common boundary between Ms Drinan’s land and Ms Dawson’s land. The evidence about that was clear. Ms Dawson gave the learned Magistrate a photograph that showed the survey pegs for the boundary line.[4] They told the learned Magistrate that the fence was not on the boundary, but was stepped back from the boundary.[5]

   [4]Transcript page 1-14, lines 16-19 ; 1-16, lines 3-5.

   [5]Transcript page 1-13, lines 17-19, 41 ; page 1-24, lines 20-23 ; page 1-25, lines 1-3.

2. In response, Ms Drinan told the learned Magistrate that the Dawsons put their own boundary marker in,[6] and that the fence “can’t get any closer than it is on the common boundary”.[7] The learned Magistrate considered all the evidence and the finding that the fence was not on the common boundary was open to him.

   [6]Transcript page 1-14, lines 7-9.

   [7]Transcript page 1-15, line 46.

3. “Fence” as defined by section 11(1), and “dividing fence” as defined by section 12(1) of the Act, mean a structure built on the common boundary. Those sections do not assist Ms Drinan. Section 12(2) states that a fence on a line other than the boundary can be a dividing fence if it is impractical to construct a fence on the common boundary. The section is directed to particular situations where a fence on the boundary can’t be built; for example, if there is a significant tree and the fence has to be diverted around it. The mere fact that the fence is built on some other line does not mean that section 12(2) operates to deem it a dividing fence.

4. Section 13(1)(a)(i) defines a “sufficient dividing fence”. The section will only operate if the fence in question is a dividing fence under section 12. If it is a dividing fence, then it will be sufficient if it is between 0.5 metres and 1.8 metres high. A fence that is not a dividing fence under section 12 will not become a dividing fence just because it is between 0.5 metres and 1.8 metres high.

5. Section 38 does not assist Ms Drinan. The section relates to future action. Here, the fence has already been built. Under section 39, a person can apply to the tribunal to demolish an unauthorised dividing fence. The learned Magistrate decided that the fence was not a dividing fence; therefore, section 39 did not apply. Section 94 gives a person a right to enter land to do work that is either agreed or ordered - there is no agreed work - the tribunal did not order any work. Section 94 did not apply.

6. Ms Drinan’s arguments about senior safety, obstruction of views and street appeal are not relevant to the tribunal’s decision. Similarly, previous disputes about lilypillies, pruning, root damage and leaf litter are not relevant to the tribunal’s decision.

1. The learned Magistrate observed that his decision didn’t resolve the parties’ differences. Ms Drinan submitted to the appeals tribunal that this dispute is causing her distress and contributing to her ill-health. It is unfortunate that the parties could not resolve their differences in mediation. A strict application of the law will not always meet the needs of the parties, but sensible and reasonable negotiation can often overcome neighbourhood differences.

1. There is no reasonably arguable case that the learned Magistrate was in error. Leave to appeal should be refused.

1. Ms Drinan has also filed an application for leave to be represented. In light of the reasons detailed above, in regard of the application for leave to appeal, this application to be represented is redundant.