Perkins v O'Kane
[2014] QCATA 82
•14 April 2014
| CITATION: | Perkins v O’Kane [2014] QCATA 82 |
| PARTIES: | Rodney John Perkins (Applicant/Appellant) |
| v | |
| Denise O’Kane (Respondent) |
| APPLICATION NUMBER: | APL075 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 14 April 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. 2. The stay ordered on 25 March 2014 is removed. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – DIVIDING FENCE – whether grounds for leave to appeal 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 Perkins and Ms O’Kane are neighbours who have been fighting about the fence between them for many years. Indeed, there were previous applications to the Small Claims Tribunal. On 20 December 2013, the tribunal made orders which should have put an end to the matter. Ms O’Kane was required to obtain a survey of the common boundary at her cost. She was also to arrange a new fence in accordance with a quote from Superior Fences dated 22 October 2013.
Mr Perkins wants to appeal that decision. He says that the reasons for decision have typographical errors. He says that the survey shows the fence is on the boundary line and, by implication, a new fence is not necessary. In his expanded submissions, Mr Perkins repeats the history of the dispute about the fence, submits that Ms O’Kane has not complied with the order and calls for the decision to be set aside.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur[1]:
There are numerous authorities, in varying language but with unvarying emphasis, that 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.
[1][2005] QCA 294 at [3].
Mr Perkins is correct in his submission that the reasons for decision have typographical errors. None of those errors affects the validity of the decision or the reasoning behind it. Although unfortunate, the mere fact of typographical errors is not a ground for leave to appeal.
Both parties have filed a copy of the survey required by the tribunal’s order. The survey shows the existing fence is close to, but not on, the boundary. As the learned Member observed, unless the fence is on the boundary, or it is not possible to build the fence on the boundary, it is not a dividing fence.
Mr Perkins’ submissions refer to his conversations with Superior Fences. He does not say when the conversations took place, with whom or in what context. He has not provided a statement from anyone at Superior Fences to confirm the conversations took place. The submissions have no value without confirming evidence.
An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing. A successful application for leave to appeal needs something more than a general dissatisfaction with the original decision and a repetition of the facts before the original tribunal. Mr Perkins has not demonstrated any error by the learned Member that has any effect on the validity of her decision.
There is no reasonably arguable case that the learned Member was in error. Leave to appeal should be refused.
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