Govoni v Hawkins
[2025] QCATA 21
•3 October 2025
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 of 2024 was heard, as it was in 35 of 2023.
The applicant seeks the following orders:
That the decision in 35 of 2023 be set aside and substituted for orders sought in application 23 of 2024.
In the alternative, set aside the decision and return the proceeding to QCAT for reconsideration.
Any other order the Appeal Tribunal considers appropriate (per s 146 of the [Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’)]).
Application 35 of 2023 relates to an application brought before learned Magistrate Callaghan siting as a Tribunal Member at Noosa on 12 January 2024. That application was for the construction of a boundary fence, made of cement blocks, to be erected on the southwestern boundary of the property situated at 140 Lenehans Lane, Doonan adjoining the property situated at 146 Lenehans Lane, Doonan. The learned Magistrate dismissed the application following his finding that the dividing fence between the properties was a sufficient dividing fence.
The learned Magistrate said:[1]
The fence is all the way along, so what I might do then is, therefore, dismiss your application and leave [it to] you guys to sort it out. If you think that you need some further adjudication on the matter, then you give another notice to fence to Kirsten. You know, and – but you won’t – I think as you’ve said, give it – for the quotes for the timber fence for seventy-three – well – sorry, give it to the – quote to replace this current fence and, say you want to build a timber fence of this type, you know, 1.8 metres high, palings, pine, etcetera, etcetera, as Mr Hope had set out in his quotation, and then asked for her to make the contribution worth one-half of the post and wire fence. Yes. Just do that and then you say, “Yes. I agree”, and then you go on. You know, as for trimming roots and trees and all of that sort of thing, well, I’ll leave that to you guys.
[1]Transcript of Proceedings, Govoni & Anor v Hawkins (Queensland Civil and Administrative Tribunal, MCDO35/2023, Magistrate Callaghan, 12 January 2024) 1-6 ll 34-44.
Emphasis has been added on the particulars of the fence that the learned Magistrate said the applicant would give to the respondent a quote to replace the current fence with.
By claim 23 of 2024, the applicant sought the following orders:
An order to enforce the agreement made during the hearing of QCAT Case Q35/23 on 12 January 24 at the Noosa Magistrates Court before [the learned Magistrate];
In the alternative, orders in terms of the agreement made during the hearing of QCAT Case Q35/23 on 12 January 2024 at the Noosa Magistrates Court before [the learned Magistrate] but extending to the end of the duck pond and the retaining wall.
In the alternative, an order as per the original application, Case Q35/23, for the erection of a block boundary fence, made of cement blocks, to be erected on the southwestern boundary of property 140 Lenehans Lane, Doonan, adjoining 146 Lenehans Lane, Doonan.
In the alternative, such further or other orders as the Tribunal sees fit to make.
The learned Magistrate hearing application 23 of 2024 on 9 August 2024, said:[2]
Now, what I’m struggling with in this matter, I’m happy to hear from the parties. What I’m struggling with is to understand how I have jurisdiction in the matter, or how I have [the] ability to hear the matter, because in the material that was filed by you it referred to previous proceedings, and which caused me to look at Noosa claim Q30-QCAT claim 35 of 23, which – on which 12 January 2024, the same parties appeared, and I’ve looked at that file briefly, and it‘s the same property in relation to the same fence issue.
The endorsement of the magistrate, [the learned Magistrate], at the time says, “I find that the existing dividing fence between 140 Lenehans Lane, Doonan and 146 Lenehans Lane, Doonan, is a sufficient dividing fence. I dismiss the application”. So that’s the endorsement. So I’m struggling to understand how we are revisiting the matter. Can you just explain that to me?
[2]Transcript of Proceedings, Govoni & Govoni v Hawkins (Queensland Civil and Administrative Tribunal, Q23/2024, Magistrate Fowler, 9 August 2024) p 1-2 ll 42-48, 1-3 ll 1-5.
After considering the submissions made primarily by the applicants, the learned Magistrate said:[3]
I think you need to obtain very specific – and I’m not being patronising; it’s a complex area of law. You need to obtain advice on whether there’s some remedy from my decision today.
[…]
Whether there’s a remedy of a decision of another magistrate, or whether you’re entitled to bring proceedings enforcing what you say is a verbal agreement in the court on another occasion. That’s complex, but that’s not what I am being asked to do today.
[3]Ibid 1-8 ll 40-43, 46-49.
The learned Magistrate then said:[4]
But perhaps, unsurprisingly, I’m not going to touch any matter in relation to the dividing fence, in relation to the two properties where it’s now been litigated twice. Once there’s been a ruling, something is existing, I don’t know what was said to be existing other than what is there is existing, so I’m not making any rulings today, sir. I’m going to encourage you to get some advice…
[4]Ibid 1-9 ll 22-26.
Accordingly, the learned Magistrate dismissed the application.
Applicable law
The jurisdiction to hear appeals is conferred upon the Tribunal pursuant to section 25 of the QCAT Act. Section 25 states as follows:
The Tribunal’s appeal jurisdiction is –
(a) the jurisdiction conferred on the Tribunal by section 26; and
(b) the jurisdiction conferred on the Tribunal by an enabling Act to hear and decide an appeal against a decision of another entity under that Act.
Section 26 of the QCAT Act states that:
The Tribunal has jurisdiction to hear and decide an appeal against a decision of the Tribunal in the circumstances mentioned in section 142.
The applicant appeals pursuant to section 142 of the QCAT Act. Subsection 142(1) states as follows:
A party to a proceeding may appeal to the Appeal Tribunal against a decision of the Tribunal in the proceeding if a judicial member did not constitute the Tribunal in the proceeding.
Section 142(3) states that an appeal under section 142(1) against any of the listed decisions of the Tribunal may be made only if the party has obtained the Appeal Tribunal’s leave to appeal.
In Allen v Queensland Building and Construction Commission [2023] QCATA 66 at [2], Judicial Member McGill SC summarised the approach to leave in the Appeal Tribunal:
As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage. An Appeal Tribunal would not usually disturb findings of fact on appeal if the evidence is capable of supporting the finding, and it is not contrary to compelling interferences. If leave to appeal is granted, the appeal is by way of rehearing so far as it is against a decision on a question of fact, or of mixed fact and law: the QCAT Act s 147. Otherwise it is an appeal which will only correct an error of law: the QCAT Act s 146.
The principles were also referred to by Senior Member Brown and Member Traves in Campbell v Queensland Building and Construction Commission [2021] QCATA 34 at [17]:
The relevant principles to be applied in determining whether to grant leave to appeal are well established: is there a reasonably arguable case of error in the primary decision; is there a reasonable prospect that the applicant will obtain substantial relief; is leave necessary to correct a substantial injustice to the applicant caused by some error; is there a question of general importance upon which further argument, and a decision of the appellate court or Tribunal, would be to the public advantage.
The enabling Act is the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘Dividing Fences and Trees Act’). In particular, s 33 of the Dividing Fences and Trees Act gives jurisdiction to the Tribunal to hear and decide any matter arising under the Act. Relevant sections to the appeal are referred to in the discussion section below.
In the usual course, leave to appeal will usually only be granted where it is necessary to correct a substantial injustice to the applicant and where there is a reasonable argument that there was an error to be corrected. In this case, leave to appeal is required as the matter concerns the proceedings for a minor civil dispute. The present appeal is on a question of mixed law and fact.
When dealing with an application for leave to appeal, the appeal must be decided by way of rehearing. The Appeal Tribunal may allow additional evidence. The Appeal Tribunal may confirm or amend the decision or set aside the decision and substitute its own decision or set aside the decision and return the matter to the Tribunal or other entity for reconsideration.
Submissions
Applications to admit additional evidence
On 6 January 2025, the respondent filed her written submissions, which included an application for leave to rely on the following additional evidence:
(a)a partial transcript of hearing before Magistrate Callaghan on 12 January 2024; and
(b)the transcript of the hearing before Magistrate Fowler on 9 August 2024.
The applicant consents to the respondent’s reliance on this purported additional material. Firstly, the transcript of the proceeding before Magistrate Fowler is already evidence in this proceeding as proceeding in its absence would frustrate the application for leave to appeal, and if granted, the appeal entirely. Logically, it would be impracticable for the Tribunal to proceed without the transcript of the decision that is being appealed. The same applies to the transcript of the proceeding before Magistrate Callaghan as it is intertwined in the decision of Magistrate Fowler. Accordingly, leave need not be granted to file evidence which is innately within the ambit of proceedings.
On 22 January 2025, the applicant filed an application for leave to rely on additional evidence, namely expert evidence, regarding the current condition of the fence and retaining wall and damage suffered and continuing to be suffered due to excess water allegedly due to the dam water overflow from the respondent’s property. The applicant submits the basis for its admission is that it did not exist at the time of the initial hearing, following which and in consideration of the complex questions of law in this matter, the applicant sought legal advice. The applicant relies on Clark v Japan Machines (Australia) Pty Ltd [1984] 1 Qd 4 404, 408 to assert that:
the evidence must be such that it would probably have an important influence on the result, although it need not be decisive; and, it must be apparently credible.
On 7 February 2024, the respondent filed written submissions in respect of the applicant’s application to rely on additional evidence. Ultimately, the respondent contends the evidence should not be admitted as it is unlikely to have an important influence on the result of this matter because it is not relevant to whether the existing fence is or is not a sufficient dividing fence.
It is not necessary to assess whether the report provided by a Registered Professional Engineer is credible because the issue before the Appeal Tribunal is whether the matters litigated in claim 35 of 2023 were different to the matters raised in claim 23 of 2024. The evidence regarding the state of the fence or retaining wall therefore do not bear on this issue and therefore cannot have an important influence on the result as otherwise submitted. Accordingly, the application to admit new evidence is dismissed.
Application for leave to appeal and appeal
The applicant submits that he and respondent did enter into an agreement in claim 35 of 2023 and that the matters litigated in that claim are different to the matters raised in claim 23 of 2024.
The applicant raises the following grounds of appeal in respect of the decision under review:
The applicant was denied the opportunity to present evidence to the Tribunal;
The learned Magistrate erred in finding the [applicant] and the respondent did not enter into an agreement; and
The learned Magistrate erred in finding that the matter had been previously litigated in claim 35 of 2023, which matters are different to those raised in claim 23 of 2024; and
The learned Magistrate erred in refusing to deal with the matters raised in claim 23 of 2024 with regards to the retaining wall.
The respondent, in lengthy written submissions, contends that there was no agreement between the parties and that the Tribunal did not have jurisdiction to deal with the retaining wall.
I am not satisfied that an error of law or fact is made out as the learned Magistrate did not fail to provide the applicant with an opportunity to present evidence to the Tribunal.
The applicant failed to demonstrate that the learned Magistrate’s finding that there was no agreement between the parties was wrong either by presentation of facts or evidence and did not demonstrate how it is glaringly improbable that the parties did not enter into an agreement.
As the learned Magistrate determined that the parties did not enter into an agreement, which would only be based on the credibility of the applicant and the respondent, and therefore should not be disturbed. As the learned Magistrate declined to make orders with respect to fencing work, he had no power under the Dividing Fences and Trees Act to make orders with respect to any retaining wall.
The respondent submits that there was no agreement between the parties, or in the alternative, that any agreement made between the parties has since been terminated by the respondent. With respect to the applicant’s evidence that the fence had deteriorated since the first hearing, the respondent notes that both of the learned Magistrates accepted that the fence required repairs but was still a sufficient dividing fence. In any event, there were no submissions setting out what work was required to be done and the cost of it before the learned Magistrate the subject of this appeal.
Discussion
I am satisfied on the material that the words used by the learned Magistrate in respect of claim 35 of 2023 do not confirm that there was an agreement between the parties with respect to the dividing fence. As noted by the second learned Magistrate, there were no terms of an agreement expressed by the first learned Magistrate, and no written document was provided for either noting or attaching to the file the agreement between the parties.
Notwithstanding that, the reason that I am not satisfied the agreement occurred is because the first learned Magistrate noted, expressly, that if the parties thought they needed further adjudication on the matter, then the applicant was to ‘give another notice to fence to [the respondent]’. The parties were clearly on notice that, in the fulness of time and having regard to the learned Magistrate’s finding that there was a sufficient dividing fence between the properties, they were to serve a notice which would form the basis of a further application to the Tribunal if they required further adjudication on the matter.
In those circumstances, I am satisfied that the learned Magistrate’s decision that is the subject of the appeal does not on its face disclose any error of fact or law. The matter with respect to the dividing fence had been heard and determined in claim 35 of 2023 and the application filed in claim 23 of 2024 was misconceived. The learned Magistrate told the parties as much, and that the applicant needed to obtain legal advice as the matter was complex.
On that basis, the other submissions made with respect to error are not relevant as the application was itself flawed and the learned Magistrate, with respect, was correct in his decision that the matter did not raise any issue for determination that had not been raised in the original claim of 35 of 2023. In the circumstances I am satisfied that no error has occurred. In those circumstances, leave to appeal is not granted and the appeal is dismissed.
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