Govoni v Hawkins - [2025] QCATA 21

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Govoni v Hawkins [2025] QCATA 21

PARTIES:

RAEFFER GOVONI

(applicant/appellant)

v

KIRSTEN HAWKINS

(respondent)

APPLICATION NO/S:

APL307-24

ORIGINATING APPLICATION NO/S:

MCDO23/24

MATTER TYPE:

Appeals

DELIVERED ON:

3 October 2025

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Rinaudo AM

ORDERS:

IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:

1. Pursuant to s 147 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), there is no error of fact or law in the decision of the original Tribunal on 9 August 2024.

2.     Leave to appeal is not granted and the appeal is dismissed.

3.     The respondent’s application to rely on additional evidence is refused.

4.     The applicant’s application to rely on additional evidence is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – WHEN APPEAL LIES – ERROR OF LAW – where the appeal is on a question of mixed law and fact – where the applicant submits he did not have an opportunity to present evidence to the original Tribunal – where both parties applied for leave to admit additional evidence – where the applicant contends the matters litigated in claims 35 of 2023 and 23 of 2024 are substantially different – where the Appeal Tribunal is not satisfied that is the case – whether the appeal should be allowed – whether the additional evidence should be admitted

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Allen v Queensland Building and Construction Commission [2023] QCATA 66

Campbell v Queensland Building and Construction Commission [2021] QCATA 34

Clark v Japan Machines (Australia) Pty Ltd [1984] 1 Qd 4 404

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

History

By application for leave to appeal or appeal filed on 4 October 2024, the applicant seeks leave to appeal a decision made by learned Magistrate Fowler sitting as a Tribunal Member at Noosa on 9 August 2024. The decision made by the learned Magistrate was that the application was to be dismissed because the matter was previously litigated. The applicant has set out two grounds of appeal, namely that:
Firstly, the Member failed to consider that application 23 of 2024 was materially and substantially different to that in file 35 of 2023. The facts, evidence and relief sought are materially and substantially different. There was no consideration by the Member of the facts, evidence and circumstances as a conclusion was reached beforehand that the application was barred by the ‘double jeopardy rule’.
Secondly, the Member failed to consider that, insofar as file 35 of 2023 related to a fence, that the effluxion of time meant that the fence was no longer a sufficient dividing fence owing to its deterioration since the decision 35 of 2023. The fence was not in the same condition at the date 23…

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.

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Details

Case: [2025] QCATA 21
Decision Date: 3 October 2025

CaseChat Overview and Summary

The matter of Govoni v Hawkins involved an appeal against a decision made by the original Tribunal on 9 August 2024. The appeal was lodged by the applicant, who contended that there was an error of law and a lack of opportunity to present evidence in the original proceedings. The respondent opposed the appeal and sought to introduce additional evidence. The appeal was heard by the Appeal Tribunal, which had to determine whether there was an error of fact or law in the original Tribunal's decision, whether the appeal should be allowed, and whether additional evidence should be admitted.

The primary legal issues before the Appeal Tribunal were whether there was an error of fact or law in the original Tribunal's decision, whether the appeal should be allowed, and whether the additional evidence proposed by both parties should be admitted. The applicant argued that the matters litigated in claims 35 of 2023 and 23 of 2024 were substantially different, thereby justifying the allowance of the appeal and the admission of additional evidence. The respondent, however, contended that the claims were not substantially different and that there was no error in the original decision.

The Appeal Tribunal found that there was no error of fact or law in the original Tribunal's decision. It held that the matters in question were not substantially different and that the applicant's opportunity to present evidence in the original proceedings was not impeded. Consequently, the Tribunal dismissed the appeal and denied both parties' applications to rely on additional evidence. The Appeal Tribunal concluded that the original decision was sound and that there was no basis to grant leave to appeal or to admit further evidence.

The Tribunal’s final orders were that the appeal was dismissed, leave to appeal was refused, and both the applicant's and respondent's applications to rely on additional evidence were refused. The Tribunal confirmed that there was no error of fact or law in the original decision of the Tribunal on 9 August 2024.

Orders

Orders of the court

IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:

1. Pursuant to s 147 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), there is no error of fact or law in the decision of the original Tribunal on 9 August 2024.

2. Leave to appeal is not granted and the appeal is dismissed.

3. The respondent’s application to rely on additional evidence is refused.

4. The applicant’s application to rely on additional evidence is refused.

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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