Glover v Pedersen
[2014] QCATA 112
•14 May 2014
| CITATION: | Glover v Pedersen [2014] QCATA 112 |
| PARTIES: | Vivienne Mary Glover (Applicant/Appellant) |
| v | |
| Digna Pedersen and Thomas Pedersen (Respondents) |
| APPLICATION NUMBER: | APL114-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On-papers hearing |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 14 May 2014 |
| DELIVERED AT: | Brisbane |
| ORDER MADE: | The application for leave to appeal is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where boundary fence dispute – whether minor encroachments warrant reconstruction of fence – where Tribunal finds that reconstruction order would be unreasonable and unwarranted expense – where primary application dismissed – where no appellable error shown – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 142 Fox v Percy (2003) 214 CLR 118 In re (an infant)W [1971] AC 682 Robinson v Corr [2011] QCATA 302 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 Snell v Morgan [2011] QCATA 316 Thompson and Anor v Jedanhay Pty Ltd [2012] QCATA 246 |
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 (QCAT Act).
REASONS FOR DECISION
There may be other cases in which miniscule encroachments on land have given rise to recriminations of the present kind, but, one hopes, not many, and not too often. The legal maxim de minimis lex non curat[1] is singularly apt.
[1]The law fusses not over trifles.
On 16 December 2013 the appellant Vivienne Mary Glover (“Glover”) of 16 McKenna Court Noosaville sued her neighbours Digna and Thomas Pedersen (“the Pedersens”) under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011,[2] for orders that they ‘pay full costs [of a fence reconstruction] by way of compensation; [and] that applicant be permitted to have the work done without interference by the respondents or their associates’.
[2]Sections 20 - 21 thereof.
The application was later elucidated as a claim that ‘a boundary fence now be completed from point 3 out to point 2 as per survey plan 42492 [dated] 27 July 2010’,[3] or a demand that a side fence ‘from about point 3 to point 2 be removed and ... reconstructed accurately’[4] on the surveyed boundary line.
[3]Transcript of hearing, 11 February 2014 (“Transcript” page 39 lines 5 - 8.
[4]Ibid page 45 lines 9 - 11.
Unfortunately the acrimony for which neighbourhood disputes are legendary was to the fore. In preliminary skirmishing Mr Pedersen described Ms Glover as a ‘vexatious’ litigant, who ‘has been harassing, bullying, photographing/videoing, spreading malicious lies and even made false allegations to the police that [the male respondent] ... stalked, threatened and even raped her’[5] – assertions which Glover vehemently denies. At the hearing, Pedersen repeatedly accused his opponent of lying – conduct, on his part, that was not only reprehensible, but, as the case unfolded, entirely unnecessary. He eventually agreed that his bellicose counterclaim was, in essence, simply a denial of liability.[6]
[5]Response and counter application filed 8 April 2014.
[6]Transcript page 39 lines 5 - 8.
The hearing was before Messrs Starkey and Thomas JJP on 11 February 2014. A survey plan was tendered, and after some futile disputation as to its accuracy, each party accepted it as correct.[7]
[7]Ibid page 25 line 1 (Glover); page 25 line 43 (Pedersen).
On the ultimate issue of encroachment, Pedersen stated that part of the existing fence encroached some 140 millimetres (5 ½ inches) onto his property. To his credit, he did not further inflame the Lilliputian dispute by making that an issue. He also admitted that part of the fence encroached about 2 centimetres (slightly less than 1 inch) onto Glover’s land.[8] Glover adduced no evidence in rebuttal of those estimates, which the Tribunal implicitly accepted. Pedersen submitted that it would be ‘ridiculous’ to rebuild the fence because of such miniscule deviations.
[8]Ibid page 37 lines 28 - 30; page 30 lines 12 - 14; page 39 lines 8 - 9.
The Tribunal agreed, and dismissing the application, observed:
It would be unjust and unreasonable to make any orders requiring either of the parties ... to demolish the existing fence and reconstruct [it] at some considerable expense for very little beneficial outcome.[9]
[9]Ibid page 45 lines 27 - 30.
The appeal filed on 5 March 2014 may proceed only by leave,[10] which depends on demonstration, by the would-be appellant, of a reasonably arguable error of law by the primary decision-maker.
[10]QCAT Act s 142((3)(a)(i).
The grounds of appeal identify no such error; still less do they attempt to justify such an allegation.
The first ground is that the Pedersens’ counter-application was ‘accepted in evidence’, but was not served upon the appellant. There is no substance in this claim. The counter-application was not treated as evidence, but merely as a plea denying liability. Given the history of this dispute, that denial can scarcely have surprised Glover. As a denial, it simply left the onus of proof upon the appellant, where it always lay, and in the Tribunal’s judgment, that onus was not discharged. No positive order for the Pedersens was based on this document.
The second ground asserts that ‘the photographic evidence provided by Mr and Mrs Pedersen at the hearing, and seen very briefly by me at that time, substantiate [sic] my claims’. This implicit rejection of the Tribunal’s decision offers no explanation of how that evidence substantiates Glover’s claims. A mere contradiction of a primary Tribunal’s fact-finding is not a viable ground of appeal.
The third suggested ground is that there be a ‘review’ in the light of ‘testimony from both Noosa and Brisbane hearings’. (Evidently there was an earlier, related case brought by Glover, and heard at Noosa.) There is no indication of what error, if any, a review of the Brisbane hearing would reveal, and there can be no question of treating the present application as an appeal against the result of other proceedings. Ground 3 is simply not a recognisable ground of appeal.
The fourth suggested ground is inarticulate, being an incomplete sentence: ‘That the multiple legally binding surveys and legal costs previously outlayed [sic] by the applicant;’.
The next demand is that ‘all visual documents be reviewed in accord with appropriate scrutiny’. This Delphic request offers no suggestion of what error such a review might reveal. It is not an intelligible ground of appeal.
Finally the application for leave contends, somewhat obscurely:
That Brisbane be accepted as the venue for the hearing with due consideration to the intimidation by Mrs Pedersen and their male friend from the gallery of the QCAT Noosa hearing, and the disrespect shown to the magistrate by Mr Pedersen.
Suffice it to say that this hearing on the papers has been conducted in Brisbane, and that this “ground” has nothing to do with arguable error.
Conditions and limitations of applications for leave
Understandably, but unfortunately, the legal limitations of applications for leave to appeal are not appreciated by many litigants in person. Those restrictions could well be more prominently advertised to intending appellants, particularly in minor civil disputes.
The legislative purpose of a leave-to-appeal provision is to ensure that the primary decision will normally be final. Before an appeal will be entertained, the appellant must demonstrate an arguable case of error, which, if left uncorrected, will result in substantial injustice. “Error” means an error of law, or a finding of fact that is not merely debateable, but rationally indefensible (which is also an error of law). Exceptionally, leave may be granted to examine a question of public importance, but few minor civil disputes answer that description.
An essential, and much misapprehended point is that an application for leave to appeal is not an opportunity to re-run the trial. It is not an occasion to repeat and reargue evidence that was reasonably rejected by the first decision-maker, or to present material that could have been put before him, but was not.[11] Certainly it is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done.[12]
[11]Snell v Morgan [2011] QCATA 316 at [10]; Thompson and Anor v Jedanhay Pty Ltd [2012] QCATA 246 at [28].
[12]Robinson v Corr [2011] QCATA 302 at [7].
It is not an appellable error to prefer one version of the facts to another, or to give less weight to one party’s case than he or she thinks it deserves. Findings of fact will not be disturbed if they have rational support in the evidence, even if another reasonable view is available.[13] Where reasonable minds may differ, a decision is not erroneous simply because one conclusion has been preferred to another possible view.[14]
[13]Fox v Percy (2003) 214 CLR 118 at 125-126.
[14]Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682 at 700; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025.
Those are the principles that apply here. In perusing Ms Glover’s application one searches in vain for any articulation of appellable error. Accordingly the application for leave must be refused.
ORDER
The application for leave to appeal is refused.
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