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Mahoney v Corrin

Mahoney v Corrin

Case [2013] QCAT 318 9 July 2013

Statutory Construction

Retrospective Operation

Interpretation of Legislation

Statutory Interpretation

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CITATION:

Mahoney v Corrin [2013] QCAT 318

PARTIES:	Helen Mahoney Peter Mahoney (Applicants)
v
Jennifer Corrin (Respondent)

APPLICATION NUMBER:

NDR036-12

MATTER TYPE:

Referral of question of law under s 117, Queensland Civil and Administrative Tribunal Act 2009 (Qld)

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Alan Wilson, President

DELIVERED ON:

9 July 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

Answer the question referred under s 117(1) of the Queensland Civil and Administrative Tribunal Act 2009 – namely, whether the Tribunal has jurisdiction to hear and decide an application in relation to a view that existed prior to 1 November 2011 (i.e. the commencement of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011) but did not exist after the commencement date – in the affirmative.

CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT – OPERATION AND EFFECT OF STATUTES – RETROSPECTIVE OPERATION – INTERPRETATION – where applicants purchased property with view of the city prior to the commencement of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 – where trees in respondent’s property allegedly now interfere with the applicant’s view – where s 66 of the Act provides that QCAT may make orders to remedy, restrain or prevent substantial, ongoing and unreasonable interferences with the use and enjoyment of land – where interference includes obstruction of a view – where common law presumption that legislation does not operate retrospectively – whether s 66 of the Act may apply to a view that existed before the commencement of the Act

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46(a)(ii)(C), s 48, s 61, s 66(2)(b)(ii), s 66(3), s 72, s 73, s 75.
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 117.

Bell v Police [2012] SASC 188, cited
Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27, cited.
La Macchia v Minister for Primary Industries (1986) 72 ALR 23, followed.
Maxwell v Murphy (1957) 96 CLR 261, applied
Re a Solicitor’s Clerk [1957] 3 All ER 617, followed.
Robertson v City of Nunawading [1973] VR 819, applied.

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

The Neighbourhood Disputes Resolution Act 2011 (‘NDA’) commenced on 1 November 2011.[1] It introduced rules designed to help neighbours find better ways to resolve disputes about dividing fences, and trees. Since its commencement the Tribunal has received over 400 applications in its Neighbourhood Disputes jurisdiction.
[1]The NDA was amended by the Classification of Computer Games and Images and Other Legislation Amendment Act 2013, renaming it the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011.
A question of law has arisen about the proper interpretation of the NDA in circumstances that are not unlikely to reoccur within the Tribunal. The question has been referred to the President of QCAT under s 117 of the Queensland Civil and Administrative Tribunal Act 2009 by the…

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.

Continue reading Mahoney v Corrin

Details

AGLC: Mahoney v Corrin [2013] QCAT 318
Case: [2013] QCAT 318
Decision Date

CaseChat Overview and Summary

The applicants, Helen and Peter Mahoney, sought a resolution to a dispute with their neighbour, Jennifer Corrin, over an alleged interference with their view of the city skyline from their dwelling at 9 Soden Street, Greenslopes. The Mahoneys claim that trees on Ms Corrin's neighbouring property at 8 Rowsley Street now obstruct their view, which they assert existed prior to the enactment of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) on 1 November 2011. The Tribunal was asked to determine whether it had jurisdiction to hear and decide the application under s 66 of the Act concerning a view that existed before the commencement of the Act but was lost thereafter.

The legal issue before the court was whether s 66 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) applied to a view that existed prior to the commencement of the Act but did not exist after the commencement date. The court considered whether the common law presumption against retrospective operation of legislation applied in this context, and if the Tribunal had jurisdiction to hear and decide the application concerning the obstructed view.

The court concluded that the common law presumption against retrospective operation of legislation did not apply to this case. The court distinguished between legislation that alters existing rights and liabilities accrued by reason of antecedent facts and circumstances, and legislation that bases future action on past events. The court held that s 66 of the Act simply invested the Tribunal with jurisdiction based upon facts and circumstances that were in operation before the Act began. The court reasoned that the use of the phrase ‘a view… that existed when the neighbour took possession of the land’ indicated that Parliament intended to allow a remedy to persons whose views existed in the past, pre-Act, but had then been lost. Therefore, the court found that the Tribunal did have jurisdiction to hear and decide an application in relation to a view that existed prior to 1 November 2011 but did not exist after the commencement of the Act.

The court's decision affirmed the Tribunal's jurisdiction to hear and decide the application concerning the obstructed view, and returned the proceeding to the Tribunal for further determination of the facts and other matters under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld). The court's decision provides guidance on the interpretation of legislation and the application of the common law presumption against retrospective operation of legislation in the context of neighbourhood disputes over views.

Orders