Kerr v Paku and Anor

[2011] QCATA 157

CITATION: Kerr v Paku and Anor [2011] QCATA 157

PARTIES:	Mr Phillip Warren Kerr
v
Mr Sinclair Paku Mrs Faye Paku

APPLICATION NUMBER:            APL015-11               

MATTER TYPE: Appeals

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Richard Oliver, Senior Member
Peta Stilgoe, Member

DELIVERED ON:   28 June 2011

DELIVERED AT:   Brisbane

ORDERS MADE:       Leave to appeal refused.

CATCHWORDS:

MINOR CIVIL DISPUTES – where appellant alleged damage to fence caused by tree roots – where adjudicator not satisfied that tree roots caused damage – where appellant filed fresh evidence with appeals tribunal – whether grounds to allow fresh evidence – whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act2009, s 137(b)

Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

Mr Oliver

1. In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me.  I have had the benefit of reading her reasons in draft.  I agree with her reasons, and her conclusions, and the order she proposes.

Ms Stilgoe

1. Mr Kerr and Mr and Mrs Paku are neighbours.  Both have a brick fence running along the rear boundary of their properties.  On the other side of the brick fence is an acoustic fence recently constructed by the Department of Main Roads.  It is uncontroversial that the brick fence is leaning towards the acoustic fence in a number of locations including, importantly, at the junction of the boundary between Mr Kerr and Mr and Mrs Paku.

1. Mr and Mrs Paku’s backyard, in contrast to Mr Kerr’s backyard, has a number of mature trees.  Mr Kerr asserted that the roots of those trees were causing the brick fence at the rear of his property to lean.  He brought proceedings in the tribunal claiming the cost of demolishing and rebuilding the fence.  He was wholly unsuccessful as the learned Adjudicator was not satisfied that trees roots were the cause of the fence’s current condition.

1. Mr Kerr has sought leave to appeal the learned Adjudicator’s decision on the grounds that he now has the necessary evidence to prove that the damage to the fence has been caused by tree roots from Mr and Mrs Paku’s property.

1. Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary.  Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.  Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

1. Mr Kerr’s application for leave to appeal is really an application for a reopening to allow fresh evidence.  If truly a reopening, the tribunal will only allow fresh evidence if it was not reasonably available when the proceeding was first heard and determined.[1]

   [1]        Queensland Civil and Administrative Tribunal Act 2009, s 137(b).

1. New evidence will ordinarily only be allowed at an appeal when it could not, by reasonable diligence, have been obtained for the original hearing, is credible, and might have produced an opposite result[2].  The tribunal’s power to allow fresh evidence on appeal is not a mechanism by which parties can repair the holes in their original case.

   [2]            Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435.

1. Mr Kerr’s only explanation of why he now wants the tribunal to consider evidence that was not available at the hearing is that the “judge” told him that the evidence he produced at the hearing was not sufficient for the learned Adjudicator to make a decision in his favour.

1. The evidence of a structural engineer was reasonably available to Mr Kerr at the hearing had he chosen to seek it out.  Mr Kerr had not provided the appeals tribunal with any good reason why this fresh evidence should be allowed.

1. Even if the appeals tribunal was minded to admit fresh evidence, I am not satisfied that the structural engineer’s report cures all the difficulties identified by the learned Adjudicator.  The report does not:

a)    Identify where the roots extend from or what tree they are from.[3]

[3]        Transcript page 13, lines 45-47.

b)    Comment on the assertion that the use of the fence as a retaining wall may be causing, or contributing to, the damage.[4]

[4]        Transcript page 14, lines 13-15.

c)    Comment on the assertion that heavy equipment used by “main roads” may have disturbed the footing.[5]

d)    Refer to the assertion that Mr and Mrs Paku’s tree roots are 90% contained within their own property[6].

e)    Comment on the effect the age of the fence may have on its condition.[7]

[5]        Transcript page 14, lines 14-16.

[6]        Transcript page 14, lines 21-22.

[7]        Transcript page 14, lines 41-43.

1. There is no question of public importance which requires a decision of the appeals tribunal; there is no reasonably arguable case of error by the learned Adjudicator; there is no reasonable prospect of substantive relief on appeal and there is no substantial injustice that will be caused if leave is not granted.  Leave to appeal should be refused.