Pakes v Richardson
[2010] QCATA 38
•17 August 2010
| CITATION: | Pakes v Richardson [2010] QCATA 38 |
| PARTIES: | Damien Pakes & Alison Pakes (Applicants) |
| v | |
| Kathleen Richardson (Respondent) |
APPLICATION NUMBER: APL045 -10
| MATTER TYPE: |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Justice Alan Wilson, President |
DELIVERED ON: 17 August 2010
DELIVERED AT: Brisbane
ORDERS MADE: Application for leave to appeal refused.
| CATCHWORDS : | MINOR CIVIL DISPUTE – DIVIDING FENCES – Dividing Fences Act 1953, s 9(4) – MEANING AND EFFECT – where the parties disagreed about the make and height of a fence to be constructed – where the learned Magistrate found that a 1800mm high colorbond fence was “usual in the locality” pursuant to the legislation – whether error in discretion to find the fence was “usual in the locality” – whether irrelevant considerations taken into account in making the finding |
REASONS FOR DECISION
Mr and Ms Pakes, and Ms Richardson own adjoining properties at Dalby. Last year they were in agreement that the fence between their properties was decrepit and overgrown and required replacement, but disagreed about the size and the cost of the new fence.
Ms Richardson began proceedings under the Dividing Fences Act 1953 in the former Small Claims Tribunal. By the time the matter came on for hearing this year that Tribunal had been replaced by QCAT, which had jurisdiction to hear and determine it[1].
[1] Queensland Civil and Administrative Tribunal Act 2009, s 256
The existing fence is made of timber and wire and is about 1040mm high. Ms Richardson wished to replace it with a colorbond fence 1800mm high, but Mr and Mrs Pakes argued that a 1200mm high wire fence was all that was necessary, and sufficient and appropriate.
When the matter first came before Magistrate Quinn (acting as a QCAT adjudicator) on 1 February 2010 it was adjourned following the learned Magistrates suggestion that the parties provide further evidence in the form of photographs and diagrams about the types of fences in the locality.
That evidence was produced by the parties at the resumed hearing on 1 March 2010. The learned Magistrate concluded that the order to fence should be in terms of the 1800mm colorbond fence sought by Ms Richardson.
The learned Magistrates reasons were transcribed. The relevant part reads:
Having looked at all the material, considered all of the material placed before me including the submissions by both parties, and being assisted by the photographs that have been provided, I am of the view that it can be said that the normal type of fence in the relevant area is the one sought by Ms Richardson, namely 1800mm colorbond fence.
In my view looking at the photographs in place and looking at the diagrams and all the other material that has been placed before me including the submissions made, although it is true to see that not every fence in the area surrounding the subject fence line is a colorbond, there is enough colorbond in that area at an 1800mm height for this Tribunal to conclude that is not an unreasonable claim to make and that it is certainly, in my view, in accordance with a finding of the propensity in that area is an 1800mm colorbond.
It is obviously a matter of degree in many situations in determining the type of fence normal in a particular locality. It does depend how narrow or how wide you go with your considerations…a colorbond fence might not be said to be a common fence in that area however looking at it from the point of view of the photographs provided by Ms Richardson in the areas that she provided I am of the view, as I have said, that it could be said to be a normal type of fence in that area.
It falls to me to make a decision in these proceedings that is fair and equitable, as it were. Taking into account all of the factors that I have referred to and all of the evidence in submissions I am of the view as I have said that an 1800mm colorbond fence erected in the normal way that such a fence is and would be erected is a fair and equitable order having regard to the types of fences in the local area, evidence of which is being placed before me.
The applicants’ contention is, in short, that only about 28% of fences in the immediate locality are made of 1800mm high colorbond, while 72% are made from some other material. Hence, they submit, the ‘average’ fence is something other than colorbond and it is a long way from the ‘norm’ for the area.
The test according to s 9(4) of the Dividing Fences Act 1953 is ‘…the kind of fence usual in the locality’. The subsection says, in full:
(4) In making any order under this section the Magistrates Court or QCAT shall take into consideration the kind of fence usual in the locality where it is proposed to construct the fence and the purposes for which the adjoining lands are used.
A couple of things may be said about the subsection. First, it requires that the decision maker ‘shall’ take the kind of fence usual in the locality into consideration. Secondly, however, that consideration does not dictate, or prescribe, the kind of fence to be constructed (s 9(1)(a)). Rather, it is simply a matter the learned Magistrate was required to take into account when making an order to fence.
The passage set out above shows the learned Magistrate was alert to the obligation placed upon him under s 9(4), and addressed it. He acknowledged that 1800mm colorbond fences were not universal but accepted that there are enough of them in the locality to warrant a finding that they where ‘usual’. He used the word ‘normal’ but, in context, I do not think there is any material difference.
It is not correct that the discretion available to the learned Magistrate under the legislation compelled him to make an order to fence limited to the kind of fence which is most common. In any area several kinds of fence may be described as ‘usual in the locality’. Once it is appreciated that the learned Magistrate was entitled to conclude that an 1800mm colorbond fence was sufficiently common to be categorised as ‘usual’, it was quite within his power to make an order in the terms he chose. He had diagrams and photographic evidence upon which to base that decision, and upon which to exercise the discretion open to him under the subsection.
It cannot be said that, in doing so, his discretion miscarried.
Unfortunately there are some complicating aspects to the decision. The learned Magistrate also made some orders about downpipes on a shed on Mr and Ms Pakes’ property, and that they demolish another shed. They were happy to do those things and, in their application for leave to appeal to this Appeal Tribunal, they say they are ‘in agreeance with all orders made on 1/3/10’. In their submissions in support of the application they say, however, that the learned Magistrate wrongly took into account these unrelated issues in reaching his decision about the terms of the order to fence.
Ms Richardson’s original application in the Small Claims Tribunal did seek orders about the sheds, of the kind which were ultimately made. One claim was that downpipes from a silver coloured shed flooded the backyard of Ms Richardson’s property, and the other that a green painted shed sloped towards her property and runoff was directed onto it.
Under the definition of ‘small claim’ in the Small Claims Tribunal Act 1973 various kinds of claims could be brought, but not of this kind. Ms Richardson was seeking orders to abate a nuisance – in legal terms, for mandatory injunctions directly that Mr and Ms Pakes do whatever was necessary to remove the nuisance caused by runoff water passing from the sheds onto her property.
As the applicants make clear they have no concern about the orders themselves, which have been complied with. Their complaint is rather, as I understand it, that issues about the sheds affected the learned Magistrate’s decision about the fence. There is nothing, however, in the learned Magistrate’s reasons suggesting that his decision to favour a colorbond fence had something to do with potential runoff. In fact, remarks in his reasons point to the contrary conclusion – as he observed, Mr and Ms Pakes had already engaged a plumber and the problem with the silver shed was to be rectified; and, they had agreed to remove the green shed within four weeks. There is nothing, then, in the reasons to suggest the decision about the kind of fence to be constructed was influenced by these ineffective orders.
It should also be observed that the proceeding has had an unusual history. It began as a proceeding in the Magistrates Court exercising its jurisdiction under the Small Claims Tribunal Act 1973 and could, it seems, have continued there: Dividing Fences Act 1953, s 18(1). At some point, however, in 2010 the Dalby Magistrates Court seems to have commenced to deal with the matter as though it was an application to QCAT. Proceedings under the Dividing Fences Act 1953 may be brought in QCAT as Minor Civil Disputes: Queensland Civil and Administrative Tribunal Act 2009, s 11 and Schedule 3, definition ‘Minor Civil Dispute’.
Under s 18(3A) of the Dividing Fences Act a decision of the Magistrates Court is final and conclusive. Under s 142(3)(a)(i) of the QCAT Act, however, a party may seek leave from the QCAT Appeal Tribunal to appeal a decision in a Minor Civil Dispute.
The history of the matter dictates that Mr and Ms Pakes application for leave to appeal should be considered by this Appeal Tribunal – i.e., it would be inappropriate, and unfair to them, to set up s 18(3A) against them now.
The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[2] Is there a reasonable prospect that the applicant will obtain substantive relief?[3] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[4] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[5]
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3] Cachia v Grech [2009] NSWCA 232 at [13].
[4] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[5] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
For the reasons discussed above there is no apparent error in the primary decision of the learned Magistrate, who exercised the discretion open to him under the legislation in a way which was available, on the evidence he received. None of these questions could be answered affirmatively. Leave to appeal should, then, be refused.
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