Knocker v Esteller
[2011] QCATA 89
•13 April 11
| CITATION: | Knocker v Esteller [2011] QCATA 89 |
| PARTIES: | James Knocker (Applicant/Appellent) |
| v | |
| Patricia Anne Esteller (Respondent) |
| APPLICATION NUMBER: | APL032-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 13 April 11 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Application for leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – DIVIDING FENCES – REOPENING – where at first instance it was ordered that a dividing fence be removed and replaced – where the matter was reopened as the performance of the order was being frustrated by Mr Knocker – where it was then ordered that both parties obtain quotes for the removal and replacement of the fence, and that each party pay half – where the applicant now seeks leave to appeal – whether leave to appeal should be granted APPEAL – LEAVE TO APPEAL – EXTENSION OF TIME TO FILE APPLICATION FOR LEAVE TO APPEAL – where the applicant filed an application for leave to appeal seven months after the decision apparently complained about had been given – whether an extension of time to seek leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009, ss 61, 139, 142 |
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
Mr Knocker has filed an application for leave to appeal what is described, in his application form, as a decision made by QCAT at Maroochydore Court on 13 July 2010.
Subsequently this Appeal Tribunal directed that the application (and his application to extend time to seek leave to appeal) would be determined on the papers, according to a timetable for written submissions from each party. The parties have provided those submissions.
It is clear that the application for leave arises from a long standing conflict between Mr Knocker and Mrs Esteller concerning a dividing fence which their properties at 5 and 7 Savannah Court, Bli Bli, share.
Mrs Esteller commenced proceedings in QCAT in December 2009 seeking orders in relation to the replacement of the fence. On 3 March 2010 the tribunal ordered that the fence be removed, and replaced. Orders were also made that the cost of construction be borne equally between the parties.
Unfortunately, that was not the end of the matter. On 16 April 2010 Mrs Esteller filed an application to reopen the orders made on 3 March because, she alleged, their performance was being frustrated by Mr Knocker and his wife.
On 29 April 2010 QCAT issued notices to both parties, listing the hearing of the reopening for 5 May 2010. On that date the Tribunal ordered that Mrs Esteller and her husband obtain quotes pursuant to the order made on 3 March 2010, and that they have the fence built in accordance with the quote; and, that Mr and Mrs Knocker pay half of the cost of the new fence.
Thereafter, according to Mrs Esteller’s written submissions, the fence was constructed and later, after some more dealings with the Magistrates Court at Maroochydore, Mr and Mrs Knocker paid their share. That occurred around the end of July 2010.
It was not until 31 January 2011, however, that Mr Knocker lodged his application for leave to appeal. It will be observed, firstly, that no proceedings appear to have been heard or determined on the date nominated in his application 13 July 2010. The QCAT file reveals, however, that on that day the Tribunal apparently addressed Mrs Esteller’s application for reopening and ordered: ‘Matter has been determined by Tribunal. Enforcement proceedings to be proceeded with’.
If, in truth, Mr Knocker’s application for leave to appeal is intended to relate to that determination of the reopening proceeding, he must fail: s 139(5) of the QCAT Act provides that the Tribunal’s decision on a reopening application is ‘… final and can not be challenged, appealed against, reviewed, set aside, or called in question in another way …’.
[10] Even if that aspect of the matter is not fatal to Mr Knocker’s claim he is obliged, in any event, to show that he ought to have leave to appeal: QCAT Act, s 142(3)(a)(i). His material in support of his application appears to ventilate a long history of disputes between him and his neighbours and some complaints about the way proceedings were conducted on 3 March and 5 May 2010. There has obviously been some unhappy history between these neighbours dating back so long as 1995.
[11] The biggest difficulty is that it is impossible to work out, from Mr Knocker’s submissions, precisely which (if any) of the Tribunals’ previous decisions (made by Magistrates acting as QCAT Members in its Minor Civil Disputes jurisdiction) he is unhappy about.
[12] 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?
[13] Nothing in Mr Knocker’s material can be said to identify any errors in the original decisions. It may be inferred from his submissions that he is unhappy about things that happened before and during the construction of a fence but he does not appear to actually suggest that the Tribunal’s judgments were wrong, or involved any procedural unfairness, or to raise anything else that might substantiate an appeal.
[14] It is also unclear why Mr Knocker waited more than 7 months to bring his application, when the time limit is 28 days: s 143(4)(b). There does appear to be a suggestion, in Mr Knocker’s submissions, that the decision made on 13 July 2010 was made in his absence but, for reasons already discussed, that is irrelevant: no appeal could lie from that decision in any event.
[15] He says elsewhere, in his submissions that he is not complaining about the decision on 3 March 2010; and he seems to have appeared at the further hearing on 5 May, and been heard by the Magistrate.
[16] This Appeal Tribunal has power under s 61 of the QCAT Act to extend the period for filing an application for leave to appeal, but nothing in Mr Knocker’s material shows why that should happen here. Even if the extension is granted, however, he has entirely failed to show how or why leave for an appeal should be granted, or why an appeal would have any prospects of success at all. In the circumstances the simplest order is, I think, to simply refuse him leave to appeal.
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