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Milnes v Middleton & Sharpe QCATA 156
Milnes v Middleton & Sharpe  QCATA 156
Ivars Peteris Milnes
On the papers
Senior Member Stilgoe OAM
21 October 2015
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – FENCING DISPUTE – where order that respondent engage surveyor and parties share costs equally – where respondent did not engage surveyor – where applicant wanted to vary terms of order concerning surveyor – where application dismissed - whether grounds for leave to appeal
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 133, 135, 138
Fox v Percy (2003) 214 CLR 118
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
- On 15 May 2015, the tribunal made detailed orders about a fencing dispute. By paragraph 6 of that order, David Middleton and Steven Sharpe were directed to instruct an independent surveyor to ascertain and peg the common boundaries. The tribunal directed Ivars Milnes pay half of the cost of that surveyor on presentation of a tax invoice.
- Contrary to paragraph 6 of the order, Mr Middleton did not engage a surveyor. Mr Middleton’s fiancé, Catherine Marsh, obtained two quotes from surveyors. Mr Middleton then presented the quotes to Mr Milnes.
- Mr Milnes thought the quotes were too expensive, so he obtained his own quote. He then applied to amend paragraph 6 of the order. He wanted to reduce his contribution to the surveyor’s costs to ⅓ or ¼, which he thought would be a fairer outcome. The tribunal dismissed his application.
- Mr Milnes 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 Milnes’ submits that the learned Adjudicator wrongly told the parties that they could not appeal his decision, because the twenty-eight day time limit had passed. He also submits that the learned Adjudicator failed to follow protocol by referring to quotes that were not in evidence before the tribunal.
- Mr Milnes filed an application for miscellaneous matters. It was not the correct form. He might have filed a Form 43, which is an application to reopen, correct, renew or amend a decision. The tribunal, rightly, did not take issue with Mr Milnes’ incorrect form but as the learned Adjudicator’s identified, Mr Milnes’ application was an attempt to circumvent the terms of the earlier orders.
- The only way the learned Adjudicator had power to vary his earlier orders is if Mr Milnes could demonstrate a reopening ground, a renewal ground or to correct a mistake.
- The tribunal can reopen a final decision if the applicant did not appear at the hearing or if there is evidence that was not reasonably available at the hearing. Mr Milnes might argue that his quote was not reasonably available at the hearing but the argument would be misconceived. As the learned Adjudicator noted, he crafted paragraph 6 in anticipation of further dispute between the parties. Mr Middleton and Mr Sharpe were directed to engage a surveyor to avoid the very problem that now confronted the parties. Similarly, Mr Milnes’ quote is in response to the order. There was no reopening ground. Mr Milnes never intended to engage his owner surveyor until he was confronted with the quotes from Mr Middleton. Mr Milnes late quote, in breach of a tribunal order, is not a reopening ground.
- The tribunal can renew a final decision if it is not possible to comply with the decision or there are problems with interpreting, implementing or enforcing the tribunal’s decision.
- The parties can comply with paragraph 6; they just don’t want to. There are no problems with interpreting the decision. The decision can be implemented and enforced. There is no ground for a renewal.
- The tribunal can also correct a clerical mistake, an accidental slip or omission, a miscalculation or a defect of form. Paragraph 6 does not contain a mistake.
- Mr Milnes might also have filed an application for leave to appeal. The learned Adjudicator had no power to consider Mr Milnes’ application as one for leave to appeal. As Mr Milnes now knows, an application for leave to appeal requires a different form, a different process and the tribunal is differently constituted. The learned Adjudicator was not in error in refusing to consider the application as an application for leave to appeal.
- The learned Adjudicator gave the parties an opportunity to resolve their dispute by agreement and offered to record a consent order. The parties could not agree an outcome. They should, in those circumstances, comply with the learned Adjudicator’s carefully crafted orders so that this dispute may be finally resolved.
- There is no reasonably arguable case that the learned Adjudicator was in error. Leave to appeal should be refused.
- Published Case Name:
Milnes v Middleton & Sharpe
- Shortened Case Name:
Milnes v Middleton & Sharpe
 QCATA 156
Senior Member Stilgoe OAM
21 Oct 2015