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Queensland Judgments
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  • Unreported Judgment

O'Sullivan v Cacciola

 

[2016] QCAT 327

CITATION:

O’Sullivan v Cacciola [2016] QCAT 327

PARTIES:

Noel O’Sullivan

(Applicant)

 

v

 

Antonio Cacciola aka Tony

(Respondent)

APPLICATION NUMBER:

MCDO1466-16

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

26 July  2016

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Alan Walsh

DELIVERED ON:

26 July 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The Applicant’s Application for transfer of the file for mediation and hearing to Southport is granted.

CATCHWORDS:

PROCEDURE – CIVIL PROCEDURE IN STATE AND TERRITORY COURTS AND TRIBUNALS – where application for dividing fence dispute filed in Brisbane – where cause of action arose at Robina on Gold Coast – where parties resident at Robina on Gold Coast - where Applicant aged and disabled – where Applicant applied  for mediation in Southport – where discretion to order transfer to Southport – where no guidance on most appropriate venue to start proceedings  – where convenience and flexibility warranted transfer of Tribunal file to Southport for mediation and hearing – where joinder of parties indicated but not ordered

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 3, 4, 29

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), rr 3, 8

Uniform Civil Procedure Rules 1999 (Qld), r 35

Parcelvalue SA by its Australian Agent, Australian Commerce Systems Pty Ltd v Ozepost Pty Ltd [2015] QCAT 463

APPEARANCES:

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) 2009.

REASONS FOR DECISION

Dividing Fence Claim filed in Brisbane

  1. [1]
    Mr O’Sullivan, the Applicant, filed a claim on 10 June 2016 in the Tribunal’s Brisbane Registry concerning a dispute about a dividing fence on the common boundary of his property and that of Mr Cacciola, the Respondent, and an associated retaining wall.
  2. [2]
    The adjoining properties are at Robina on the Gold Coast of Queensland where the parties and their spouses apparently live.

Application for Transfer to Southport

  1. [3]
    The dividing fence claim was listed for mediation at the Tribunal’s Brisbane premises for 30 August 2016 but Mr Sullivan filed a miscellaneous application with the Brisbane Registry of the Tribunal on 20 July 2016 for transfer of the case to Southport for mediation (‘the transfer application’) relying on the following grounds in support.
  2. [4]
    Mr O’Sullivan has a particular need to have the claim heard as close to home as is feasible because he is 96 years old, hard of hearing, infirm, able only to walk with an aid and public transport is his only means of getting about. I envisage that Mr Cacciola, as next door neighbour, would be aware of at least some of these disabilities from observation.

Transfer Order

  1. [5]
    The transfer application came before me on the papers for a decision on 26 July 2016.
  2. [6]
    It was unclear from the file at the time as to whether Mr O’Sullivan had served a copy of the transfer application on Mr Cacciola but, consistently with the Tribunal’s statutory objective to do so, I dealt with it expeditiously because the date for mediation in Brisbane was not that far off.
  3. [7]
    I ordered that the Tribunal file be transferred to Southport for mediation and also for hearing of the dispute (‘the transfer order’). Mr O’Sullivan’s application implicitly sought transfer to the Tribunal’s registry at Southport for all purposes.

Reasons Request

  1. [8]
    Mr Cacciola has subsequently asked for written reasons as to why I made the transfer order.

Statutory Considerations

  1. [9]
    Written reasons in this case will be generally informative about the Tribunal’s practices and I am required in any event to take all reasonable steps to ensure each party to a proceeding understands the practices and procedures of the Tribunal.[1]
  2. [10]
    Consistently with the Tribunal’s statutory objectives and functions set out in the QCAT Act,[2] the purpose of the Tribunal’s rules is to ensure that matters before the Tribunal are dealt with in a way that is accessible, fair, just, economical, informal and quick,[3] while allowing flexibility to cater for different needs of particular parties.[4]

Why I Made The Transfer Order

  1. [11]
    As I have already said, this dispute concerns a dividing fence and associated retaining wall on the common boundary between the parties’ properties at Robina where they live.
  2. [12]
    If a Tribunal view, i.e. an inspection, of the properties were required in the course of the hearing as is sometimes necessary in complex dividing fence disputes such as the present one, Robina is far closer to Southport than it is to Brisbane.
  3. [13]
    Southport as a hearing venue is therefore more accessible and convenient to the parties and more convenient for the Tribunal.
  4. [14]
    More pertinently, Mr O’Sullivan has special needs having regard to his age and disabilities to which I have already referred. They warrant, if not command, procedural flexibility on the Tribunal’s part in determining the appropriate venue.
  5. [15]
    One might ask rhetorically, why would the parties wish to have their dispute processed and heard in Brisbane with the associated inconvenience and logistical difficulties which that would present when mediation and hearing at Southport is available?
  6. [16]
    I can think of no good reason why the parties would not prefer Southport to Brisbane as the most convenient venue for mediation and hearing in due course.
  7. [17]
    It is true, as Mr Cacciola might assert, that Mr O’Sullivan could originally have filed his claim in the Tribunal’s Southport Registry. However, I infer that Mr O’Sullivan was unaware of that option in the following circumstances.
  8. [18]
    As I said in Parcelvalue SA by its Australian Agent, Australian Commerce Systems Pty Ltd v Ozepost Pty Ltd,[5] there is, curiously, no provision in the QCAT Rules[6] akin to r 35 of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) which provides that a person must start a proceeding:
  1. either in the district of the respondent’s residence or place of business;               or
  2. where a debt is payable; or
  3. where all or part of the claim or cause of action arose; or
  4. where land is located where recovery of possession is sought; or
  5. where the parties consent in writing.
  1. [19]
    The Tribunal Form 53 Application for minor civil dispute – dividing fences, itself, only gives guidance on where to file a dividing fence application by saying that it may be lodged by mail or in person at the Tribunal’s Brisbane Registry or at any Magistrates Court (excluding Brisbane) but there is no guidance on the most appropriate venue.
  2. [20]
    Transfer applications such as this one would be much less likely to arise if venue guidance was briefly stated in the Tribunal’s standard forms for commencing a proceeding. That would promote greater procedural efficiency and minimise the need for transfer applications such as in this case.
  3. [21]
    In the circumstances, Mr O’Sullivan is not to be criticised for commencing proceedings in the Tribunal’s Brisbane registry in the first instance and he has not delayed unduly in asking for the transfer.

Prospective Joinder of Parties

  1. [22]
    I noticed in passing that the fencing contribution notice upon which Mr O’Sullivan relies was, correctly it seems, given and signed by both himself and his spouse. I assume both are registered owners of their property. The notice was addressed to Mr and Mrs Cacciola, presumably on the same basis.
  2. [23]
    However, neither of Mrs O’Sullivan and Mrs Cacciola are named in the proceeding as they seemingly should be.
  3. [24]
    Whilst I did not make any order in that regard as there are underlying factual matters to be confirmed, consideration will need to be given to formal joinder of Mrs O’Sullivan and Mrs Cacciola as parties to the proceeding in the event that the dispute is not settled at mediation as hopefully it will be.

Order Confirmed

  1. [25]
    I therefore confirm my order of 26 July 2016 that the Applicant’s application for transfer of the file for mediation and hearing to Southport is granted.

Footnotes

[1] QCAT Act s 29(1)(a)(i).

[2] Ibid, ss 3, 4.

[3] Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’) r 3(1)(a).

[4] Ibid, r 3(1)(b).

[5] [2015] QCAT 463 at [29].

[6] Except in respect of residential tenancy claims where r 8 requires that a claim be filed only in the registry closest to the rental premises or in the Brisbane Registry.

Close

Editorial Notes

  • Published Case Name:

    O'Sullivan v Cacciola

  • Shortened Case Name:

    O'Sullivan v Cacciola

  • MNC:

    [2016] QCAT 327

  • Court:

    QCAT

  • Judge(s):

    Adjudicator Alan Walsh

  • Date:

    26 Jul 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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