Forostenko & Donnelly v Lloyd - [2015] QCATA 154

CITATION:	Forostenko & Donnelly v Lloyd [2015] QCATA 154
PARTIES:	Phillip Forostenko Bronwyn Donnelly (Applicants/Appellants)
v
Sue Lloyd (Respondent)

APPLICATION NUMBER:

APL229-15

MATTER TYPE:

Appeals

HEARING DATE:

6 October 2015

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

12 October 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal granted.

2. Appeal allowed.

3. The decision of 27 January 2015 is set aside.

4. The application is listed for rehearing.

5. Phillip Forostenko and Bronwyn Donnelly may file and serve any further material in support of their application by 4:00pm 2 November 2015.

6. Sue Lloyd may file and serve any further material in response by 4:00pm 2 November 2015.

7. Unless the tribunal otherwise orders, all witnesses must attend the hearing in person for cross examination. Any application for a witness to attend by remote means or by remote conferencing must be made at least 14 days before the hearing.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – FENCING DISPUTE where rural fence in Anstead – where application for timber fence – where dogs and chickens breached rural fence – whether fence sufficient – whether tribunal required to consider issues of privacy, safety and utility - whether grounds for leave to appeal

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – PROCEDURE – where tribunal order that witnesses were required for cross examination – where applicant’s witness attended and was cross examined – where respondent’s witnesses did not attend – where tribunal formed adverse view of applicant’s witness – whether lack of procedural fairness – whether grounds for leave to appeal

Neighbourhood Dispute Resolution (Dividing Fences and Trees) Act 2011 ss 13, 36

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

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

Anstead is a semi-rural suburb about 20 km south west of the Brisbane CBD. Sue Lloyd has lived there for many years. Phillip Forostenko and Bronwyn Donnelly moved next door in 2012.
The boundary between the two properties is over 200 metres long. The fence on that boundary was about 21 years old and constructed of many different materials. Much of the fence is a traditional rural fence: three strands of wire through hardwood posts (“the rural fence”). The fence didn’t stop Ms Lloyd’s chickens or dogs from straying next door. Mr Forostenko and Ms Donnelly’s dogs were also able to stray onto Ms Lloyd’s property. Ms Lloyd’s horse was able to lean over the fence and graze the grass next door. Unfortunately, in the process, the horse partially squashed the fence.
Mr Forostenko and Ms Donnelly wanted a new fence. They proposed that the parties contribute equally to:
a) a capped timber paling fence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Forostenko & Donnelly v Lloyd

Details

AGLC: Forostenko and Donnelly v Lloyd [2015] QCATA 154
Case: [2015] QCATA 154
Decision Date: 12 October 2015

CaseChat Overview and Summary

The appeal in Forostenko & Donnelly v Lloyd involved a dispute over a rural fence situated in Anstead. The applicants, Phillip Forostenko and Bronwyn Donnelly, sought to construct a timber fence, while the respondent, Sue Lloyd, contested the adequacy of the proposed fence, citing concerns about the breaching of dogs and chickens. The applicants argued that the tribunal's decision did not adequately consider the issues of privacy, safety, and utility, and that the tribunal's process was unfair due to the non-attendance of the respondent’s witnesses for cross-examination. The applicants sought leave to appeal the tribunal's decision.

The legal issues before the court were whether the tribunal was required to consider privacy, safety, and utility in determining the sufficiency of the fence, and whether the tribunal's decision was procedurally unfair due to the non-attendance of the respondent's witnesses for cross-examination. The applicants argued that the tribunal had not appropriately addressed the core issues of the dispute, and that the absence of the respondent's witnesses had prejudiced their case.

The court found that the tribunal did not adequately consider the relevant factors in deciding the sufficiency of the fence. The court held that the tribunal was required to consider privacy, safety, and utility as part of its assessment. Additionally, the court found that the tribunal's decision was affected by procedural unfairness due to the absence of the respondent's witnesses for cross-examination, which the applicants argued had prejudiced their case. The court granted leave to appeal and set aside the tribunal's decision, ordering a rehearing with specific instructions on the attendance of witnesses.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed.

3. The decision of 27 January 2015 is set aside.

4. The application is listed for rehearing.

5. Phillip Forostenko and Bronwyn Donnelly may file and serve any further material in support of their application by 4:00pm 2 November 2015.

6. Sue Lloyd may file and serve any further material in response by 4:00pm 2 November 2015.

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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