Wicks v Fox
[2024] QCATA 92
•28 August 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Wicks v Fox [2024] QCATA 92
PARTIES:
BERNARDINE WICKS (first applicant/appellant)
ROBERT WICKS (second applicant/appellant)
v
COLLIN FOX (respondent)
APPLICATION NO/S:
APL233-23
ORIGINATING APPLICATION NO/S:
MCDO38-22MATTER TYPE:
Other minor civil dispute matters
DELIVERED ON:
28 August 2024
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Dr J R Forbes
ORDERS:
1. The application for leave to appeal is granted.
2. The appeal is upheld.
3. The decision to dismiss the application in question on 13 July 2023 is set aside.
4. In lieu thereof, Fox must permit an engineer or other suitably qualified person to conduct soil tests on his side of the fence to determine the extent of fill on his side of the dividing fence to determine the extent to which deficiencies in filled soil, particularly drainage deficiencies, have caused a deterioration, if any, of the foundations of the retaining wall supporting the dividing fence.
5. Wicks may engage an engineer to carry out the said inspections within four weeks of this order and to prepare a relevant report within fourteen days of their completion.
CATCHWORDS:
MINOR CIVIL DISPUTE – DIVIDING FENCE DISPUTE – interlocutory application – where application for inspection of adjacent property – where expert evidence sought – where at first instance application dismissed without reasons – where appropriate that primary decision maker give reasons – where leave to appeal granted – where appeal allowed and primary decision set aside
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 122, s 142
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld)
Davis v Davis, Wissing (party cited) (1963) 5 FLR 398
Harris v Caladine (1991) 172 CLR 84Jet 60 Minute Cleaners Pty Ltd v Brownette [1981] 2 NSWLR 232
Poyser and Mills’ Arbitration, Re [1964] 2 QB 167
Public Service Board of NSW v Osmond (1986) 159 CLR 656R v King; ex parte Westfield Corporation (Victoria) Ltd (1981) 64 LGRA 28
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)
REASONS FOR DECISION
INSPECTION ORDER SOUGHT
In this dividing fence dispute[1] the original respondent Robert Wicks (‘Wicks’) made the following interlocutory application:
1. That … Collin Fox permit an engineer or other suitably qualified person to conduct soil tests on his side of the dividing fence to determine the extent of fill on his side and the extent to which defects on his side e.g drainage deficiencies have caused a deterioration to the foundations of the retaining wall supporting the dividing fence.
2. That the respondent [Wicks] engage an engineer to carry out the inspections referred to in 1 within 4 weeks of the making of the order and for the engineer to provide a report in relation to his inspection within the 14 days thereafter.
[1]Under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld).
Order refused
In response to that request the Tribunal made this order on 13 July 2023:
The application of the respondent filed on 2 June 2023 for the Tribunal to direct what evidence to determine what evidence the applicant provides is refused.
Interlocutory appeal
From that decision Wicks seeks leave to appeal,[2] upon these grounds:
There has been a manifest error by the Tribunal in its decision on 13 July 2023 because the Tribunal misinterpreted the substance of the application made on 2 June 2023 by me.
The effect of the decision denies me the opportunity to obtain important expert evidence by compelling [Fox] to allow and engineer to enter onto my neighbour’s premises to assess works constructed by him on his side of the fence/wall, following his refusal of permission to the engineer for that to occur …
Without an appeal being heard, the hearing of the substantive application will proceed … without the vital evidence I seek by way of an expert report …
Without leave to appeal being granted, the matter is likely to be decided in the absence of procedural fairness simply because [Fox] has refused a reasonable request.
[2]Leave is required to appeal to appeal an interlocutory order – i.e. one that does not decide the substantive cause of action: Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(ii).
Wicks asks the Tribunal to make the same orders as sought in his unsuccessful application of 2 June 2022.[3]
[3]See paragraph [1] above.
Absence of reasons
The unidentified decision maker gave no reasons for his or her decision. It is true that according to the Queensland Civil and Administrative Tribunal Act 2009 (Qld) there is no obligation to give reasons, on request or otherwise, for some decisions.[4] But of course that does not bar the giving of reasons, request or no request. It would be otherwise if reasons were requested, but that is not the case here. Absent a request, it may be appropriate to give reasons, however brief, for decisions that are important and by no means self-explanatory. It seems to me that the present case is of that kind.
[4]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 122(4).
Reasons warranted
There is a long and strong judicial support for the value of reasoned decisions, whether they be strictly obligatory or not. Good adjudication involves, inter alia, careful observance of natural justice.[5] An adjudicator who has to give reasons is less prone to ‘caprice or impulsive actions’.[6] A failure to give reasons adds insult to an adverse decision.[7] Without reasons how can a party be confident that the case was understood and properly considered? A reasoned decision is more likely to be respected by fair-minded observers, if not be every disappointed litigant. A tribunal that gives no reasons may invite the inference that there were no good reasons.[8]
[5]Harris v Caladine (1991) 172 CLR 84 at 150.
[6]Davis v Davis, Wissing (party cited) (1963) 5 FLR 398 at 401 per Barry J.
[7]Re Poyser and Mills’ Arbitration [1964] 2 QB 167 at 478.
[8]R v King; ex parte Westfield Corporation (Victoria) Ltd (1981) 64 LGRA 28 at 49; Jet 60 Minute Cleaners Pty Ltd v Brownette [1981] 2 NSWLR 232 at 235; Public Service Board of NSW n Osmond(1986) 159 CLR 656 at 663-665.
Reasonable application
Unfortunately, fencing disputes not infrequently generate more heat than light. In this case an independent witness deposed:
CF was the most difficult customer I have ever encountered in 20 years. His expectations were unreasonable and sometimes impossible to achieve. He had numerous complaints. For example, he wouldn’t accept a fence post that had a 4mm over a length of 2.4 metres and insisted I replace it.[9]
[9]Affidavit of G W Stacey 29 March 2022 page 1.
There was nothing unreasonable about Wicks’ request to seek an expert inspection and report, courteously requested. It is very difficult to understand why the request was not granted, without a need for procedural litigation.
The arbitrary refusal of Wicks' application invites reconsideration.
ORDERS
1.The application for leave to appeal is granted.
2.The appeal is upheld.
3.The decision to dismiss the application in question on 13 July 2023 is set aside.
4.In lieu thereof, Fox must permit an engineer or other suitably qualified person to conduct soil tests on his side of the fence to determine the extent of fill on his side of the dividing fence to determine the extent to which deficiencies in filled soil, particularly drainage deficiencies, have caused a deterioration, if any, of the foundations of the retaining wall supporting the dividing fence.
5.Wicks may engage an engineer to carry out the said inspections within four weeks of this order and to prepare a relevant report within fourteen days of their completion.
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