Hardie v Gibson

[2018] QCATA 74

CITATION: Hardie v Gibson & Anor [2018] QCATA 74

PARTIES:	Noel Hardie (Applicant/Appellant)
v
Jay Alexander Gibson (First Respondent) Kate Gibson (Second Respondent)
APPLICATION NUMBER:		APL378-17

MATTER TYPE: Application and Appeals

HEARING DATE: 20 March 2018

HEARD AT: Brisbane

DECISION OF: Justice Carmody

DELIVERED ON: 15 May 2018

DELIVERED AT: Brisbane

ORDERS MADE:

THE APPEAL TRIBUNAL ORDERS THAT:

1.     Leave to appeal is refused

CATCHWORDS:

APPEAL – LEAVE TO APPEAL  – where the applicant seeks leave to appeal a decision transferring a minor civil dispute to the magistrates court – where the applicant claimed compensation for repairing damage to his carport and gravel driveway that occurred during a cyclone – where the applicant attributed the damage to the respondent’s non-compliant storm water drainage system – where the tribunal transferred the matter to the magistrates court with the jurisdiction to hear and decide negligence and nuisance claims with the applicant’s consent – where the application of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) was not raised until the application for leave to appeal – whether leave is required to appeal a procedural decision – where the tribunal did not err in exercising its transfer discretion

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 46, 52, 61, 62, 63, 65 66(5)

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 10(1)-(2), 11, 12, 52, 142(3)

Amanda Flynn Charity Limited & Anor v Dawson [2013] QCATA 124

Coles v Wood [1981] 1 NSWLR 723

Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCAFC 154

Puttick v Fletcher Challenge Forests Pty Ltd (2007) 18 VR 70

APPEARANCES and REPRESENTATION (if any):

APPLICANT/APPELLANT      Self-represented

RESPONDENT  Self-represented

REASONS FOR DECISION

1. This is a purported “appeal” from an order transferring a civil dispute to the magistrates court as the more appropriate forum. The tribunal’s discretion is said to have miscarried because it:

   ·     is inconsistent with statutory objects in a dispute about property damage of less than $2,000 caused by a neighbouring tree;

   ·     caused confusion for the applicant with court rules, formalities and technicalities;

   ·     limits his access to justice;

   ·     decreases efficiency;

   ·     needlessly increases the costs (filing and professional) and time expended to resolve the dispute.

   The context

2. The parties are neighbours. Their land is divided by a paling fence.

3. The applicant claims the $1,577.42 for the cost of repairing his carport which was damaged in late March 2017 during a cyclone (the tree damage) and $495 for reinstating the gravel driveway washed away by storm water runoff (the water damage).

4. Both categories of damage were attributed in the claim to runoff from the respondent’s non-compliant storm water drainage system on the basis that “… the stormwater goes around (their) house and makes the backyard all soggy”.[1]

   [1]Transcript of proceedings (T) 17/10/2017 1-5:5.

5. A solicitor’s letter sent to the respondent in July 2017 complained:

   … your down pipes are not properly connected to storm water drains, or adequately directed to storm water saw a significant volume…