Pollard & Anor v Fitzgibbon & Anor - [2019] QCATA 42

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Pollard & Anor v Fitzgibbon & Anor [2019] QCATA 42

PARTIES:

CAROL POLLARD
and
GERRY POLLARD
(appellants)

v

ROSANNE FITZGIBBON
and
PHILLIP FITZGIBBON

(respondents)

APPLICATION NO/S:

APL206-18

ORIGINATING APPLICATION NO:

Claim MCDO460-17 (Southport)

MATTER TYPE:

Appeals

DELIVERED ON:

9 April 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

Leave to appeal against the decision made on
20 July 2018 in Claim MCDO460-17 Southport is refused. The appeal therefore fails.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – leave to appeal – where appellant sought leave to appeal against Adjudicator’s decisions about sufficiency of a dividing fence and the correct contributions to be made towards the costs of its erection – where Adjudicator extended time to apply to the tribunal for a contribution – whether any reasonably arguable grounds of appeal

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIOD – POWER OF COURT TO EXTEND LIMITATION PERIOD – where section 32 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) permits an application in a fencing dispute to be made to the tribunal within 2 months after a contribution notice is given – where section 61(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) seems to permit the time period to be extended – whether this is open to the tribunal in the light of section 43A of the Limitations of Actions Act 1954 (Qld) – whether the time period is a ‘modifying provision’ and if so whether it is inconsistent with the power to extend time in section 61 – whether the power to extend the time period in section 61 is ousted – whether the Adjudicator was right to extend time

Acts Interpretation Act 1954 (Qld), s 14(1), s 14(4)
Limitations of Actions Act 1954 (Qld), s 43A
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 21, s 27, s 30, s 31, s 32, s 38, s 39
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(a), s 4(b), s 6, s 7, s 33(3), s 61(1), s 143(4)

Aurisch v Millsons Pty Ltd and Others [2011] QCAT 245
Bull v Porteus [2018] QCATA 100
Campaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney-General & Ors [2016] QCA 37
Eco-Builder Pty Ltd v Queensland Building and Construction Commission [2018] QCAT 59
Harper Property Builders Pty Ltd v Queensland Building and Construction Commission [2018] QCATA 70
McLachlan v Real Tenants – Real Property Management ACN 130683297 [2011] QCAT 665
Pelechowski v The Registrar, Court of Appeal (S62-1998) [1999] 198 CLR 435
Queensland Building and Construction Commission v Watkins [2014] QCA 172
Ragless v Prospect District Council [1922] SASR 299
Raymond v Doidge [2012] QCAT 163
Ryan v Cornwall [2010] QCAT 212
Stewart v Penrose [2017] QCATA 119
Watkins v Queensland Building and Construction Services [2013] QCAT 535

REPRESENTATION:

Appellants:

Self-represented

Respondents:

Self-represented

APPEARANCES:

This matter was heard…

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.

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Details

Case: [2019] QCATA 42
Decision Date: 9 April 2019

CaseChat Overview and Summary

Pollard and another versus Fitzgibbon and another was heard in the Queensland Civil and Administrative Tribunal (QCAT). The appellants sought leave to appeal the Adjudicator's decisions about the sufficiency of a dividing fence and the correct contributions to be made towards the costs of its erection. The Adjudicator had extended the time to apply to the tribunal for a contribution. The court had to decide if there were any reasonably arguable grounds of appeal.

The court examined whether the time period for an application in a fencing dispute could be extended. Section 32 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) permits an application to be made within 2 months after a contribution notice is given. The court also considered if section 61(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) permits the time period to be extended. The court had to decide if this was possible given section 43A of the Limitations of Actions Act 1954 (Qld). The court concluded that the time limit in section 32 was a modifying provision within the meaning of section 6(7) of the QCAT Act, but it was not inconsistent with the power to extend time in section 61. The tribunal does have the power to extend the time limit in section 32. The Adjudicator was right to extend time as he did.

The court found no merit in ground 2 of the appeal. Appeals in minor civil disputes can only be brought with the leave of the Appeal Tribunal. Such leave will only be given if there is an arguable case on appeal. Such appeals are only arguable if the decision maker is in error in law, or has made a factual finding which could not be made on the evidence and is of such importance as to require leave to be given. This was not the case here. Leave to appeal was refused and the appeal therefore failed.

Leave to appeal against the decision made on 20 July 2018 in Claim MCDO460-17 Southport was refused. The appeal therefore fails.

Orders

Orders of the court

Leave to appeal against the decision made on

20 July 2018 in Claim MCDO460-17 Southport is refused. The appeal therefore fails.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In the circumstances my conclusion is that whereas the time limit in section 32 is a modifying provision within the meaning of section 6(7) of the QCAT Act, is it not inconsistent with the power to extend time in section 61 because such a time limit was in the contemplation of section 61 as being the type of time limit in an enabling Act which could be extended. Hence, the time limit in section 32 does not prevail over the power to extend time in section 61. The tribunal does have power to extend the time limit in section 32. The Adjudicator was right in the circumstances to extend time as he did. There is no merit in ground 2 of the appeal.Conclusion in the appeal Appeals in minor civil disputes can only be brought with the leave of the Appeal Tribunal. Such leave will only be given if there is an arguable case on appeal. Such appeals are only arguable if the decision maker is in error in law, or has made a factual finding which could not be made on the evidence and is of such importance as to require leave to be given. This is not the case here. Leave to appeal is refused and the appeal therefore fails.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Pollard & Anor v Fitzgibbon & Anor [2019] QCATA 42
PARTIES:	CAROL POLLARD and GERRY POLLARD (appellants)
v
ROSANNE FITZGIBBON and PHILLIP FITZGIBBON (respondents)
APPLICATION NO/S:	APL206-18
ORIGINATING APPLICATION NO:	Claim MCDO460-17 (Southport)
MATTER TYPE:	Appeals
DELIVERED ON:	9 April 2019
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Gordon
ORDERS:	Leave to appeal against the decision made on 20 July 2018 in Claim MCDO460-17 Southport is refused. The appeal therefore fails.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – leave to appeal – where appellant sought leave to appeal against Adjudicator’s decisions about sufficiency of a dividing fence and the correct contributions to be made towards the costs of its erection – where Adjudicator extended time to apply to the tribunal for a contribution – whether any reasonably arguable grounds of appeal LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIOD – POWER OF COURT TO EXTEND LIMITATION PERIOD – where section 32 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) permits an application in a fencing dispute to be made to the tribunal within 2 months after a contribution notice is given – where section 61(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) seems to permit the time period to be extended – whether this is open to the tribunal in the light of section 43A of the Limitations of Actions Act 1954 (Qld) – whether the time period is a ‘modifying provision’ and if so whether it is inconsistent with the power to extend time in section 61 – whether the power to extend the time period in section 61 is ousted – whether the Adjudicator was right to extend time Acts Interpretation Act 1954 (Qld), s 14(1), s 14(4) Limitations of Actions Act 1954 (Qld), s 43A Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 21, s 27, s 30, s 31, s 32, s 38, s 39 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(a), s 4(b), s 6, s 7, s 33(3), s 61(1), s 143(4) Aurisch v Millsons Pty Ltd and Others [2011] QCAT 245 Bull v Porteus [2018] QCATA 100 Campaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney-General & Ors [2016] QCA 37 Eco-Builder Pty Ltd v Queensland Building and Construction Commission [2018] QCAT 59 Harper Property Builders Pty Ltd v Queensland Building and Construction Commission [2018] QCATA 70 McLachlan v Real Tenants – Real Property Management ACN 130683297 [2011] QCAT 665 Pelechowski v The Registrar, Court of Appeal (S62-1998) [1999] 198 CLR 435 Queensland Building and Construction Commission v Watkins [2014] QCA 172 Ragless v Prospect District Council [1922] SASR 299 Raymond v Doidge [2012] QCAT 163 Ryan v Cornwall [2010] QCAT 212 Stewart v Penrose [2017] QCATA 119 Watkins v Queensland Building and Construction Services [2013] QCAT 535
REPRESENTATION:
Appellants:	Self-represented
Respondents:	Self-represented
APPEARANCES:
This matter was heard…