Rigby & Marsh v Knowles & Knowles
[2024] QCATA 37
•21 March 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Rigby & Marsh v Knowles & Knowles [2024] QCATA 37
PARTIES:
ALEXANDER MCLEOD RIGBY
BROOKE AMANDA MARSH(appellants)
v
BRUCE KNOWLES
ANNABEL KNOWLES(respondents)
APPLICATION NO/S:
APL337-23
ORIGINATING APPLICATION NO/S:
Q503-23 Brisbane
MATTER TYPE:
Appeals
DELIVERED ON:
21 March 2024
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Gordon
ORDERS:
1. Leave to appeal is granted, the appeal is allowed and the decision made on 12 September 2023 to dismiss application Q503-23 (Brisbane) is set aside.
2. The Appeal Tribunal substitutes a decision that application Q503-23 (Brisbane) is dismissed for want of jurisdiction.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where an Adjudicator dismissed an application for a minor civil dispute for want of jurisdiction at a hearing which the applicants could not attend, where the parties had agreed that the hearing should be adjourned to enable the applicants’ submissions on jurisdiction to be heard – whether the hearing was procedurally unfair – whether the tribunal had jurisdiction to hear the application
Human Rights Act 2019 (Qld), s 31
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 10, s 28, s 31, s 32
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 93, s 146
Financial Advisers Australia v Mooney & Anor [2016] QCATA 181
Hashfield v Gold Coast City Council [2020] QCATA 36
Lauren Kay George Pty Ltd as trustee for the Lauren Kay George Family Trust v Wolf [2023] QCATA 78.
L J Hooker Stafford v Roberts [2020] QCATA 94Tamarin Pty Ltd & Otmoor Pty Ltd as trustee v Wicks [2021] QCATA 146
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Appellants:
Self-represented but assisted by Rigby Lawyers
Respondents:
Self-represented by assisted by PHV Law Solicitors and Consultants
REASONS FOR DECISION
This appeal considers whether there was procedural unfairness in the way an Adjudicator handled the hearing when dismissing for want of jurisdiction an application which claimed a contribution for a dividing fence. This decision also considers whether the tribunal had jurisdiction to hear the application in the particular circumstances.
The hearing was on 12 September 2023 and it had been listed for a full hearing of the application on the merits. The only person who appeared at the hearing was a legal representative of the respondents. But only two weeks before the hearing, the respondents’ application for legal representation had been refused by the tribunal. So the legal representative was not permitted to represent the respondents at the hearing. Instead, the legal representative asked to appear ‘as a friend of the tribunal’. The Adjudicator agreed to this.
The applicants had applied for an adjournment of the hearing because they were ‘overseas’. Although the notice of hearing had been sent to the parties on 23 August 2023, the applicants only made the application for an adjournment the day before the hearing. They had obtained the respondents consent to the adjournment.
At the hearing, the Adjudicator raised a jurisdictional issue about the claim. The legal representative explained that it was the respondents’ position that there was no jurisdiction to hear the claim, but that they consented to the adjournment ‘simply to allow the applicants the opportunity to be heard in respect of the primary application or the question of jurisdiction’. This position was also expressed in a letter of consent to the application for the adjournment which had been lodged with the tribunal.
The Adjudicator was convinced from the paperwork on the file that the tribunal had no jurisdiction to hear the claim. Explaining that the application was a ‘fencing dispute dressed up as a minor debt’ the Adjudicator dismissed the application because the tribunal did not have jurisdiction to hear it.
In this appeal brought by the applicants, they say that it would be a ‘travesty of justice’ to allow this decision to remain undisturbed bearing in mind there was a consent application for an adjournment, with an explanation why the applicants could not appear, and because the applicants were unable make their submissions about jurisdiction, and where the respondents’ legal representative had done so despite being refused leave to represent the respondents at the hearing.
The respondents say however, that the Adjudicator dealt with the matter in a way which was ‘accessible, fair, just, economical, informal and quick’, as required by section 3(b) of the QCAT Act.
Although I do not agree that the respondents’ legal representative made any submissions about jurisdiction at the hearing, but merely pointed out the respondents’ position on this, it was unfortunate that the Adjudicator permitted the representative to say anything at all bearing in mind leave to represent the respondents had been refused. It made the hearing appear unfair to the absent applicants.
When giving directions on 17 October 2023, the Appeal Tribunal raised a preliminary issue to be decided in this appeal, that is whether the decision made on 12 September 2023 had been irregularly entered. The points for consideration mentioned in the directions were whether there was a breach of natural justice in that the Adjudicator had heard from the representative as a ‘friend of the tribunal’ as mentioned above, had failed to make a decision on the application for an adjournment, had failed to consider whether to hear and decide the application in the absence of the applicants under section 93 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) which would have required a finding of satisfaction that the person had been given notice of the hearing in accordance with the rules of the tribunal, and had not inquired properly into the question of lack of jurisdiction to hear the application.
Although I think it is possible to infer from what the Adjudicator said at the hearing that there was a decision not to allow the adjournment, and a decision that the notice of hearing had been properly served and a decision that it was right to proceed in the applicants’ absence, it would have been preferable if these decisions had been stated and explained. Not doing so made it appear that they had not been decided.
It is also true that the question of jurisdiction was decided without giving the applicants a chance to make submissions about it. Not permitting submissions to be made on an important issue to be decided by the tribunal could amount to procedural unfairness. Here I think it probably did. This would differ from the situation in Tamarin Pty Ltd & Otmoor Pty Ltd as trustee v Wicks [2021] QCATA 146, where neither of the parties had expressed a desire to give submissions on jurisdiction when it was raised at the hearing by the Adjudicator, and where the giving of such submissions would have been futile.
The right to a fair hearing is now in section 31 of the Human Rights Act 2019 (Qld).
These concerns mean that it is right to give leave to appeal and I would answer the preliminary issue in the affirmative.
The Appeal Tribunal has now made directions that if the Appeal Tribunal constituted to hear the application for leave to appeal and to determine the preliminary issue identified in the directions of 17 October 2023 gives leave to appeal then it may determine the appeal on the papers.[1] Accordingly I would allow the appeal because of the concerns mentioned above and set aside the Adjudicator’s decision.
[1]Directions of 18 March 2024.
If it were not for the jurisdictional issue below, I would remit the claim to the tribunal for reconsideration.
Does the tribunal have jurisdiction to hear this application?
Because of the Appeal Tribunal’s directions about the preliminary issue, the parties have now made submissions in writing about the jurisdiction of the tribunal to hear the application. Those submissions on each side have been made by lawyers.
This means it is possible for me to decide the question of jurisdiction. It is right for me to do this because if I were to allow the appeal it would be wrong to remit it to the tribunal for reconsideration if the tribunal had no jurisdiction to hear it.[2] In any case, when deciding an appeal on a question of law the Appeal Tribunal can confirm or amend a decision or set aside a decision and substitute its own decision, or make any other order it considers appropriate.[3]
[2]L J Hooker Stafford v Roberts [2020] QCATA 94 at [22], Dr J R Forbes.
[3]Section 146 of the QCAT Act.
The application was made as a claim for a minor civil dispute. It stated that the applicants and respondents were adjoining landowners. It stated that there was an oral agreement reached between them that the respondents would pay to the applicants a 50% share of the cost of demolishing an existing dividing fence (which amount was not yet ascertained but would be based on an unstated hourly rate) plus an amount of $4,000 being an estimate of the cost of erecting a new dividing fence to be erected by one of the applicants, Mr Rigby.
After the work was done, the applicants issued the respondents with an invoice for $5,211 which reflected this alleged agreement. This was calculated as follows:
cost of erecting the fence $8,000
cost of demolishing the existing fence $2,422 $10,422
agreed costs payable by each neighbour 50% $5,211
The $5,211 was claimed as a minor debt. It purported to be a claim for recovery of a debt or liquidated demand of money.
In their filed response and filed evidence, the respondents say that they agreed to an outlay of no more than $4,000. It seems to be their case that they did not agree to pay this to the applicants. Instead they agreed to pay it to various contractors who did necessary work arising from the erection by the applicants of the new fence.
The difficulty with the claim as cast is that only the $4,000 was liquidated. A substantial body of case law has developed in QCAT about what a minor debt claim is, that being one of the limbs of the tribunal’s minor civil dispute jurisdiction. In schedule 3 of the QCAT Act it is defined as:
a claim to recover a debt or liquidated demand of money, with or without interest, of up to the prescribed amount…
There is a useful description of what is not a liquidated demand of money in Practice Direction 9 of 2010 which explains what happens when there is an application under section 50A of the QCAT Act for a decision by default where the claim is for unliquidated damages. It describes unliquidated damages as follows:
Unliquidated damages is where a claim is made for a sum which cannot be determined without consideration, by the Tribunal, of the applicant’s evidence in support of the claim –for example, a claim in which the precise amount which should be awarded cannot be determined from the terms of a prior agreement between the parties, or some other standard; and must be calculated by reference to invoices, quotations or the like.
The claim includes the sum of $1,211 which is clearly unliquidated because it would require an assessment of the reasonable hours spent on demolishing the existing fence and a reasonable hourly rate. Neither of these things were agreed by the parties in advance. The claim is therefore a mixed one containing liquidated and unliquidated elements.
In Hashfield v Gold Coast City Council [2020] QCATA 36 I had to decide whether such a mixed claim was within the tribunal’s jurisdiction:[4]
I conclude therefore, that for the tribunal to have jurisdiction in this area,1 the application overall must be to recover a debt or a liquidated demand of money. If any substantial part of the claim is not to recover a debt or a liquidated demand of money and is not otherwise within the jurisdiction of the tribunal, then there is no jurisdiction to hear the application.2 Of course it is open to a party faced with this difficulty to abandon the part of the application which is outside the jurisdiction of the tribunal.
1 That is a ‘minor debt claim’ as defined in the first limb of the definition of minor civil dispute in Schedule 3 of the QCAT Act.
2 There is no difficulty where there is a mixed claim part of which is within the tribunal’s jurisdiction as a debt or liquidated demand of money and part of which is within the jurisdiction as a trader-trader claim: Adelaide Nut Distributors Pty Ltd v Plus Sales Pty Ltd [2012] QCATA 4 (Senior Member Richard Oliver).
[4]Paragraph [66].
Hashfield has been followed in the tribunal when the same issue has been raised.
In their submissions, the applicants have not abandoned the non-liquidated part of the claim. The closest they got to this was to say:[5]
The Applicants are entitled to at least payment by the respondents of $4,000 pursuant to the agreement.
[5]Paragraph 15 of submissions made on 16 November 2023.
That is a reference I think, to the respondents’ case that there was no agreement to pay any more than $4,000. It is the nature of the claim which determines whether the tribunal has jurisdiction.[6] Hence the tribunal could not decide as a preliminary issue whether the applicants or the respondents were right about what was agreed – there would be no jurisdiction to decide this because the claim included a substantial non-liquidated element.
[6]Financial Advisers Australia v Mooney & Anor [2016] QCATA 181, [12], Justice Carmody.
It is noted that section 10 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (NDA) expressly reserves the right of a party to claim an agreed contribution towards a dividing fence. But section 10 does not confer on the tribunal any additional jurisdiction to hear such a claim. Hence if the applicants claim had overall been one for recovery of a debt or liquidated demand of money then the tribunal could have heard it but not otherwise.
The applicants do not submit that the tribunal has any jurisdiction to hear the application in any other way. No contribution notice under section 31 of the NDA was served prior to the work being done so that route was not available to the applicants.
And it is not suggested that the tribunal has any jurisdiction under the NDA because the fencing work was ‘urgent fencing work’ under section 28. For section 28 to apply it must be impracticable to give a contribution notice under section 31, and the work which can be done is limited to restoring it to a reasonable standard having regard to its state before the damage or destruction. This would not apply because the applicants’ work to the fence was to change its nature considerably. In any case, QCAT only has jurisdiction under these provisions if a section 32 notice is given by the owner who carried out the work, and this has not been done. Finally, for these provisions to apply there must be a finding that the work was urgent,[7] and the applicants do not contend this.
[7]Lauren Kay George Pty Ltd as trustee for the Lauren Kay George Family Trust v Wolf [2023] QCATA 78.
Conclusion in the appeal
Although the Adjudicator was right to dismiss the claim, the route taken to do so was probably incorrect. Leave to appeal is granted, the appeal is allowed and the decision is set aside. But the Appeal Tribunal substitutes a decision that the application is dismissed for want of jurisdiction.
0
6
3