Metcalfe v Hall & Anor - [2015] QCATA 43

CITATION:

Metcalfe v Hall & Anor [2015] QCATA 43

PARTIES:	Jonathon Metcalfe (Applicant/Appellant)
v
Pamela Hall Ralph Westera (Respondents)

APPLICATION NUMBER:

APL524-14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice D Thomas, President

DELIVERED ON:

20 March 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – DIVIDING FENCES – where application to fence – where respondent argued ecological grounds for no fence – where fence ordered – whether grounds for leave to appeal

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTES – PROCEDURE – where no response filed – where respondent applied to file material at hearing – where respondent applied for adjournment – whether failure to provide procedural fairness – whether grounds for leave to appeal

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 7(1), 12, 13, 21, 36
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3(b), 32, 142(3)(a)(i)
Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 43(1)

R v Sussex Justices; ex parte McCarthy[1924] 1 KB 256
House v The King (1936) 55 CLR 499
Lovell v Lovell (1950) 81 CLR 513

Pickering v McArthur [2005] QCA 294

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 (Qld) (“QCAT Act”).

REASONS FOR DECISION

Mr Metcalfe has lived at 315 Severin Street, Cairns, since 1985. In July 2013, Ms Hall and Mr Westera bought the house next door. Both properties back onto the “Central Cairns Swamp Reserve”.
Ms Hall and Mr Westera wanted to fence the boundary between their property and Mr Metcalfe’s property. On 5 September 2014 they issued a notice to contribute. On 2 October 2014 Mr Metcalfe rejected that proposal, so Ms Hall and Mr Westera filed an application in the tribunal. A Magistrate, sitting as a member of the tribunal, ordered:
a)    That Ms Hall and Mr Westera engage a surveyor to determine the line of the common boundary.
b)    That each party contribute equally to the surveyor’s costs.
c)    A new dividing fence be erected on the common boundary.
d)    The fence be constructed of 1.8 metre timber palings in accordance with a quote from Cairns Fencing.
Mr Metcalfe wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1]QCAT Act s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3].

Procedural fairness before the hearing

Mr Metcalfe’s first ground of appeal is that he did not have sufficient time to prepare his material for the hearing. Mr Metcalfe states that he received a…

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 Metcalfe v Hall & Anor

Details

AGLC: Metcalfe v Hall & Anor [2015] QCATA 43
Case: [2015] QCATA 43
Decision Date: 20 March 2015

CaseChat Overview and Summary

Metcalfe, the appellant, lodged an appeal against a decision of the Magistrates Court of Victoria, presided over by Justice Hall and another magistrate, the respondents. The original dispute concerned a boundary fence between Metcalfe's property and that of his neighbour, the respondent. Metcalfe sought an order for the construction of a dividing fence, while the respondent opposed the construction on ecological grounds. The Magistrates Court ordered the fence to be built, and Metcalfe now sought leave to appeal against that decision.

The central legal issues in this appeal were whether the Magistrates Court provided the respondent with procedural fairness and whether the reasons for the original decision were sufficient grounds for leave to appeal. Metcalfe argued that the respondent did not respond to the application for the fence, and therefore the court should have dismissed the application for want of prosecution. Additionally, Metcalfe submitted that the respondent's application to file material at the hearing and for an adjournment amounted to a failure to provide procedural fairness. Metcalfe also contended that the reasons for the original decision were inadequate and that leave to appeal should be granted on those grounds.

The Court held that Metcalfe's submissions did not establish sufficient grounds for leave to appeal. The Court found that the respondent's failure to respond to the application for the fence did not result in any procedural unfairness, as the Magistrates Court had the authority to proceed with the matter. Furthermore, the Court found that the respondent's application to file material at the hearing and for an adjournment was not a denial of procedural fairness, as the Magistrates Court had the discretion to grant such requests. In addition, the Court held that the reasons for the original decision, while not comprehensive, were sufficient to uphold the Magistrates Court's decision. Therefore, the appeal was dismissed, and leave to appeal was refused.

Orders

Orders of the court

1. Leave to appeal refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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