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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Minehan v Goonan  QCATA 89
ORIGINATING APPLICATION NO/S:
9 June 2020
On the papers
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – where the parties were in dispute over a dividing fence – where the claim was resolved with an order by consent – where the appellants subsequently sought to reopen the proceedings but the application was refused – where the Justices of the Peace also ordered that the appellants pay money to the respondents - where the appellants appealed against the order – where the Queensland Civil and Administrative Tribunal Act 2009 (Qld) excludes appeals against a reopening decision – where the Justices of the Peace had no jurisdiction to make the further monetary order - where the appeal was otherwise futile because it disclosed no complaint about error made below – where the respondents had filed an application to strike out or dismiss the appeal – where the appropriate course was to make final determinative orders in the appeal
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 139(5)
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
- The applicants (‘Minehans’) and the respondents (‘Goonans’) are neighbours. They fell into dispute over a dividing fence between their properties.
- The Goonans commenced proceedings in the tribunal for an order for a new dividing fence to be constructed. The matter was determined at mediation in the tribunal on 25 October 2019 with the parties agreeing to a consent order. Part of the consent order was that the Minehans would be solely responsible for the demolition and construction of a new metal dividing fence.
- The new dividing fence was built by a contractor at the Goonans’ expense at a cost in excess of $8,500. During construction the fencing contractor agreed to build a small retaining wall at the bottom of the fence at an additional cost of $212.80.
- The fencing contractor asked the Minehans to pay for the small retaining wall because he said the Minehans had requested the work. The Minehans refused to pay. The Goonans paid instead.
- The Minehans filed an application for Reopening, Correction, Renewal or Amendment Form 43 in the tribunal. In the form the renewal variable was selected but the application details made it clear that the Minehans sought to reopen the consent order of 25 October 2019. It was in fact an application for reopening. They said they wanted the consent order set aside because they an existing small sleeper retaining wall should not have been needed to be replaced and further the new fence was not built on the dividing boundary between the properties.
- The parties filed evidence including evidence from the fencing contractor who said the Minehans approved the entire construction, including the line upon which the fence was built, and only complained because they refused to pay the extra $212.80 for the replacement retaining wall as agreed.
- The application for reopening was refused by Justices of the Peace on 6 February 2020. The Justices of the Peace also ordered however that the Minehans pay the Goonans $212.
- The Minehans have filed an application for leave to appeal or appeal the decision by consent made on 25 October 2019 and the decision made on 6 February 2020. They have also filed an application to stay the decision of 6 February 2020.
- On 25 February 2020 the Goonans filed an application to dismiss or strike out the application for leave to appeal or appeal and the Minehans’ application for a stay of the order made 6 February 2020.
- Given the matter concerns a minor civil dispute proceeding, leave to appeal is necessary before any appeal will be entertained.
Appeal of Reopening
- The application for leave to appeal seeks to reopen the decision made on 6 February 2020 which was in turn a decision refusing to reopen the decision made on 25 October 2019. It lacks merit.
- By s 139(5) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) the tribunal’s decision on an application to reopen proceedings is final and cannot be challenged, appealed against, reviewed, set aside, or called in question in another way.
- There is no capacity to appeal or otherwise go behind the reopening decision made on 6 February 2020, which as stated was a decision refusing to reopen the consent order made on 25 October 2019.
- Even if the application for leave to appeal the decision made on 25 October 2019 was considered separately to the issue of reopening, the application for leave to appeal was filed well out of time. The application for the Appeal Tribunal’s leave to appeal the consent order had to be filed within 28 days after a copy of the final decision was received by the parties. The consent order was received or likely to have been received apparently on 1 November 2019. The application for leave to appeal was filed on 14 February 2020.
- Further what the Minehans complain about in their application for leave to appeal is not the order made by consent on 25 October 2019 but what occurred during construction of the fence after that order was made. The Minehans raise no ground of appeal alleging an error made in the decision of 25 October 2019.
- By s 47 of the QCAT Act if the tribunal (or Appeal Tribunal) considers a proceeding is frivolous, vexatious or misconceived or lacking in substance or otherwise an abuse of process, the tribunal may dismiss the proceeding.
- The application for leave to appeal the decision of 6 February 2020 refusing to reopen the decision made 25 October 2020 is misconceived and an abuse of process. It must be dismissed.
Order for payment
- Which leaves the order for payment of money made by the Justices of the Peace when refusing to reopen the consent order.
- That order should never have been made for a number of reasons.
- First, in refusing the reopening application the tribunal was without jurisdiction to make other decisions in the matter because refusing to reopen meant the final decision made below was confirmed and stood. There were no outstanding matters yet to be decided or further orders to be made.
- The originating application was an application concerning a dividing fence. It did not include any claim for payment of a debt.
- Nor was there any later application for minor debt filed by the Goonans in the tribunal seeking recovery of $212 from the Minehans. By s 12(1) of the QCAT Act the tribunal may exercise its jurisdiction for a minor civil dispute if a relevant person has, under the QCAT Act, applied to the tribunal to deal with the dispute. There was no such application made here. The only application before the Justices of the Peace was the application for reopening.
- The debt could not form part of the dividing fence claim because it did not exist as at the date of filing the dividing fence application nor when that application concluded with the consent order made 25 October 2019. There was therefore no jurisdiction in the Justices of the Peace to make the order for payment of money on 6 February 2020.
- The tribunal must, where possible, deal with matters in a way that is fair, just, economical, informal and quick. It is in none of the parties’ interests to allow this doomed application for leave to appeal to continue, nor the erroneous order about payment of money made by the Justices of the Peace to linger on. It is appropriate that it be finalised now.
- If the Goonans believe they have a claim for the sum of $212 against the Minehans they should commence appropriate minor debt proceedings for that in the tribunal.
- If the Minehans believe they have a claim for removal of the new dividing fence because it is not on the boundary line between the parties’ properties, they may commence proceedings in the tribunal to have it removed and replaced. Potentially that may result in an order that they bear some or even all of the costs associated with that exercise, because the Goonans and the contractor say the Minehans approved the current fence on the current boundary line.
- The appropriate orders to resolve these proceedings now are to set aside the order made by the Justices of the Peace on 6 February 2020 that the Minehans pay the Goonans $212 and to dismiss the application for leave to appeal.
 QCAT Act, s 3(b).
- Published Case Name:
Paul Minehan and Vicki Minehan v Anthony Goonan and Jennifer Goonan
- Shortened Case Name:
Minehan v Goonan
 QCATA 89
09 Jun 2020