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Forostenko & Donnelly v Lloyd QCATA 154
Forostenko & Donnelly v Lloyd  QCATA 154
6 October 2015
Senior Member Stilgoe OAM
12 October 2015
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – FENCING DISPUTE where rural fence in Anstead – where application for timber fence – where dogs and chickens breached rural fence – whether fence sufficient – whether tribunal required to consider issues of privacy, safety and utility – whether grounds for leave to appeal
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – PROCEDURE – where tribunal order that witnesses were required for cross examination – where applicant’s witness attended and was cross examined – where respondent’s witnesses did not attend – where tribunal formed adverse view of applicant’s witness – whether lack of procedural fairness – whether grounds for leave to appeal
Neighbourhood Dispute Resolution (Dividing Fences and Trees) Act 2011 ss 13, 36
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur  QCA 294
Chambers v Jobling (1986) 7 NSWLR 1
Ryan v Butler  QCATA 222
APPEARANCES and REPRESENTATION (if any):
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).
REASONS FOR DECISION
- Anstead is a semi-rural suburb about 20 km south west of the Brisbane CBD. Sue Lloyd has lived there for many years. Phillip Forostenko and Bronwyn Donnelly moved next door in 2012.
- The boundary between the two properties is over 200 metres long. The fence on that boundary was about 21 years old and constructed of many different materials. Much of the fence is a traditional rural fence: three strands of wire through hardwood posts (“the rural fence”). The fence didn’t stop Ms Lloyd’s chickens or dogs from straying next door. Mr Forostenko and Ms Donnelly’s dogs were also able to stray onto Ms Lloyd’s property. Ms Lloyd’s horse was able to lean over the fence and graze the grass next door. Unfortunately, in the process, the horse partially squashed the fence.
- Mr Forostenko and Ms Donnelly wanted a new fence. They proposed that the parties contribute equally to:
- a)a capped timber paling fence 2.1 metres high for 30 metres of the fence;
- b)a “rural link” fence 1.2 metres high, supported by hardwood timber posts, for the remainder of the boundary;
- c)a flood gate in the dam area constructed of timber palings on a steel frame;
- d)the damaged back fence paling replaced with new timber palings.
- Ms Lloyd agreed to contribute half of the cost, up to $125, to repair the damaged back fence palings. She did not agree to the balance of the proposal.
- Mr Forostenko and Ms Donnelly applied to the tribunal for orders about the fence. The tribunal ordered, in accordance with a quote from Mr Hermann, fencing contractor:
- a)14 metres of wooden paling fence be repaired.
- b)The backyard fence section be extended in height.
- c)The fence in the car parking area be repaired; and
- d)The remainder of the fence up to 170 metres be repaired.
- Mr Forostenko and Ms Donnelly wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
- Mr Forostenko and Ms Donnelly submit that the tribunal disregarded questions of utility, safety and privacy when considering what was a sufficient dividing fence. They say the tribunal gave inappropriate weight to the evidence of Mr Hermann, and insufficient weight to the evidence of their witness, Mr Paroz. They submit that the tribunal did not provide procedural fairness, in that they were not able to cross examine Ms Lloyd’s witnesses, and they did not have an opportunity to speak to the volume of photos Ms Lloyd produced. They submit the tribunal made mistakes of fact.
Utility, privacy and safety
- The Neighbourhood Dispute Resolution (Dividing Fences and Trees) Act 2011 (Qld) defines a sufficient fence in limited terms. A fence is a sufficient dividing fence if it is between 05.m and 1.8m high and consists substantially of prescribed material. “Prescribed material” has a number of specific definitions and a catch all phrase: “other material of which a dividing fence is ordinarily constructed.”
- A fence can also be a sufficient dividing fence if the tribunal decides that it is a sufficient dividing fence.
- The rural fence is not made of the specific prescribed material. Therefore, it can only be a sufficient fence if a post and strand wire fence is material from which a dividing fence is ordinarily constructed or the tribunal decides that it is a sufficient fence.
- In deciding whether a fence is a sufficient dividing fence, the tribunal may consider all circumstances of the application including (relevantly):
- a)Any existing fence;
- b)The purposes for which the two parcels of land are used;
- c)The kind of dividing fence usually used in the area.
- Mr Forostenko and Ms Donnelly referred me to a number of tribunal decisions which, they say, support their submission that the tribunal must consider issues such as utility, privacy and safety. I agree that the tribunal can, and should, consider issues of privacy and utility, in the context of the locality, when deciding whether a fence is sufficient.
- In its reasons for decision, the tribunal acknowledged the problem of escaping dogs and chickens but it did not address that issue when deciding whether the fence was sufficient. The tribunal also acknowledged that Mr Forostenko used his yard as a children’s play area. It seems somewhat surprising, therefore, that the tribunal did not specifically address issues of the dogs, the chickens and the safety of the children when making its decision.
- It is apparent from its reasons for decision that the tribunal decided that the environment of Anstead was semi-rural and then assessed the fence only against that criterion. Something more was required; the tribunal also had to consider the uses to which these particular parcels were put. The tribunal did not do so in any obvious way. I am therefore compelled to conclude that the tribunal misapplied its discretion.
- Mr Forostenko referred to a number of tribunal decisions in his application for leave to appeal. They do give general guidance, but not just on the question of the sufficiency of the fence. A careful reading of the cases shows that, where one neighbour wants a substantially better fence than the existing fence, the tribunal will usually requires that neighbour to pay for the privilege. The tribunal did not turn its mind to the issue of contribution when considering Mr Forostenko’s application.
- Leave to appeal should be granted and the appeal allowed.
The weight of the evidence
- The tribunal found Mr Paroz unpersuasive. The tribunal had the benefit of seeing Mr Paroz give evidence, whereas I have only the transcript. I cannot disturb the tribunal’s assessment of Mr Paroz.
- The tribunal preferred Mr Hermann’s evidence, yet he was not subject to cross examination. That leads to Mr Forostenko’s third ground of appeal; lack of procedural fairness.
Lack of procedural fairness
- On 7 November 2014, the tribunal ordered that, unless otherwise ordered, all witnesses were required to attend the hearing in person for cross examination.
- Mr Forostenko’s independent witness, Mr Paroz, was available for cross examination at the hearing. Mr Forostenko had applied for leave for Mr Paroz to attend by telephone, but the application was refused.
- In view of the earlier order, and Mr Paroz’s reluctant attendance, the tribunal was in error in taking that approach. Ms Lloyd’s witnesses should have been available for cross examination. The tribunal denied Mr Forostenko and Ms Donnelly the opportunity to question Ms Lloyd’s witnesses but formed the view that Mr Paroz, who was questioned, was unreliable.
- Again, leave to appeal should be granted and the appeal allowed.
- The decision of 27 January 2015 should be set aside. Because Ms Lloyd’s witnesses were not available for cross examination, the application should be listed for rehearing. It is appropriate that the parties be given leave to file fresh evidence, as the fencing work has been completed.
 QCAT Act s 142(3)(a)(i).
 Pickering v McArthur  QCA 294 at .
 Section 13.
 Section 13(3).
 Section 13(1)(c)(ii).
 Section 36.
 Ryan v Butler  QCATA 222 at .
 Reasons for decision at .
 Reasons for decision at .
 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
 Chambers v Jobling (1986) 7 NSWLR 1 at 10.
 Transcript page 1-19, lines 37 – 40.
 Transcript page 1-20, lines 15 – 16.
- Published Case Name:
Forostenko & Donnelly v Lloyd
- Shortened Case Name:
Forostenko & Donnelly v Lloyd
 QCATA 154
Senior Member Stilgoe OAM
12 Oct 2015