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Metcalfe v Hall QCATA 43
Metcalfe v Hall & Anor  QCATA 43
On the papers
Justice D Thomas, President
20 March 2015
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – DIVIDING FENCES – where application to fence – where respondent argued ecological grounds for no fence – where fence ordered – whether grounds for leave to appeal
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTES – PROCEDURE – where no response filed – where respondent applied to file material at hearing – where respondent applied for adjournment – whether failure to provide procedural fairness – whether grounds for leave to appeal
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 7(1), 12, 13, 21, 36
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3(b), 32, 142(3)(a)(i)
Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 43(1)
R v Sussex Justices; ex parte McCarthy  1 KB 256
House v The King (1936) 55 CLR 499
Lovell v Lovell (1950) 81 CLR 513
Pickering v McArthur  QCA 294
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
- Mr Metcalfe has lived at 315 Severin Street, Cairns, since 1985. In July 2013, Ms Hall and Mr Westera bought the house next door. Both properties back onto the “Central Cairns Swamp Reserve”.
- Ms Hall and Mr Westera wanted to fence the boundary between their property and Mr Metcalfe’s property. On 5 September 2014 they issued a notice to contribute. On 2 October 2014 Mr Metcalfe rejected that proposal, so Ms Hall and Mr Westera filed an application in the tribunal. A Magistrate, sitting as a member of the tribunal, ordered:
- a)That Ms Hall and Mr Westera engage a surveyor to determine the line of the common boundary.
- b)That each party contribute equally to the surveyor’s costs.
- c)A new dividing fence be erected on the common boundary.
- d)The fence be constructed of 1.8 metre timber palings in accordance with a quote from Cairns Fencing.
- Mr Metcalfe 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.
Procedural fairness before the hearing
- Mr Metcalfe’s first ground of appeal is that he did not have sufficient time to prepare his material for the hearing. Mr Metcalfe states that he received a copy of the application on 27 October 2014, a copy of the notice of hearing on 30 October 2014 and the matter was heard on 11 November 2014. Mr Metcalfe states that he should have been allowed 28 days in which to file a response.
- Rule 43(1) of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld), to which Mr Metcalfe referred the tribunal, makes clear that there is no right to file a response to a fencing dispute.
- Further, the instructions for completing the application for a fencing dispute refer to very short time frames between service and hearing of one to three days, depending upon the urgency of the application. This short time frame accords with the tribunal’s mandate to deal with matters quickly. There is no error in the tribunal listing a proceeding for hearing two weeks after Mr Metcalfe received a copy of the application.
- Instead of filing a Form 40 application for miscellaneous matters, Mr Metcalfe wrote to the tribunal, asking for an extension of time in which to prepare his case. The tribunal refused Mr Metcalfe’s request.
- Mr Metcalfe’s letter refers to Ms Hall and Mr Westera’s character assassination, to which he wanted to respond. In deciding whether to make a dividing fence order, the tribunal may consider all of the circumstances of the case but the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) directs the tribunal’s attention to particular matters, all of which relate to the physical characteristics of the fence itself. Relations between the adjoining owners is not one of those matters and is not relevant. I note that Mr Metcalfe does not seek leave to appeal this decision.
Procedural fairness during the hearing
- Mr Metcalfe prepared a brief for presentation at the hearing. Given the short time frame between receiving the application and the hearing, Mr Metcalfe did not file and serve the brief prior to the hearing. The only material before the learned Magistrate was that filed by Ms Hall and Mr Westera.
- Mr Metcalfe submits that the learned Magistrate, without addressing the merits of the case, turned on him and announced that his case was without merit. Mr Metcalfe states that the learned Magistrate had not yet seen any of his material.
- That submission is correct. After some preliminary questions, the learned Magistrate told Mr Metcalfe that much of his material was irrelevant to the determination of the issue because it related to the behaviour of the tenants in Ms Hall and Mr Westera’s house. Mr Metcalfe explained that he did not file the material to which the learned Magistrate referred. When questioned, Ms Hall and Mr Westera confirmed that they filed the material to which the learned Magistrate was referring, not Mr Metcalfe.
- The learned Magistrate also, incorrectly, criticised Mr Metcalfe for failing to file a response to the application. Pursuant to the tribunal rules, a party to a minor civil dispute proceeding, which includes a fencing dispute, cannot (my emphasis) respond to the application. Rule 44, which does allow but not mandate a response, is written in terms that may include a fencing dispute. However, applying the general interpretation rule that the specific overrides the general, it follows that Mr Metcalfe was not obliged to file his material prior to the hearing.
- The learned Magistrate’s conduct, in suggesting that Mr Metcalfe filed material he did not file, of criticising Mr Metcalfe for the nature of that material and for criticising Mr Metcalfe for not filing material, was regrettable. From that point, Mr Metcalfe did not trust the integrity of the process and did not feel that he received procedural fairness. The learned Magistrate did, in fact, carefully consider Mr Metcalfe’s arguments and, reading the transcript as a whole, I am satisfied that Mr Metcalfe did receive procedural fairness. The conduct of the case does, however, confirm the well-known principle that justice must not also be done but be seen to be done.
- In the hearing, the learned Magistrate referred to documents Ms Hall and Mr Westera had filed but not served. The documents comprised a letter from Mr Metcalfe to Ms Hall and Mr Westera dated 27 October 2014, a letter from Mr Metcalfe to Ms Hall and Mr Westera dated 5 November 2014, and five photos of the side of Ms Hall and Mr Westera’s house, where they wished to erect the fence.
- Procedural fairness requires that Mr Metcalfe have the opportunity to see, and comment upon, any material filed by Ms Hall and Mr Westera in support of their application. However, the learned Magistrate indicated early in the hearing that he did not consider the documents relevant to the issue. The learned Magistrate repeated that view a number of times throughout the hearing. In the circumstances, I am not persuaded that Mr Metcalfe was denied procedural fairness on this ground.
- Mr Metcalfe submits that he was not entitled to present material in support of his position. The transcript does not support Mr Metcalfe’s submission. It is true that the learned Magistrate asked Mr Metcalfe to summarise his argument before the learned Magistrate looked at Mr Metcalfe’s documents. Once the learned Magistrate understood Mr Metcalfe’s argument, Mr Metcalfe was able to, and did, take the learned Magistrate to particular documents. He referred the learned Magistrate to photographs. He took the learned Magistrate to photographs of other fences in the area. He took the learned Magistrate to a quote for a shorter fence, to a map of the proposed fence, and to documents outlining the course of negotiations. The learned Magistrate accepted Mr Metcalfe’s summary of argument. The learned Magistrate did not accept the documents that were simply duplicates of the material filed by Ms Hall and Mr Westera. In his reasons for decision, the learned Magistrate specifically noted that he allowed Mr Metcalfe to file late material.
- Mr Metcalfe asked for an adjournment so that he could present expert evidence from an ecologist. Later in the hearing, the learned Magistrate raised the issue again. He asked Mr Metcalfe what material he wanted to present if he was given an extension. Mr Metcalfe told the learned Magistrate that he had met the deadline and ‘these are my documents’. In light of that comment, I am not persuaded that Mr Metcalfe was denied the opportunity to present his material to the learned Magistrate.
- Mr Metcalfe asserts that the learned Magistrate did not explain why he would not accept Mr Metcalfe’s character references. I do not accept that proposition. The learned Magistrate repeatedly told Mr Metcalfe that his character was not an issue. It must follow, therefore, that character references were not relevant.
- Mr Metcalfe wants the appeal tribunal to consider his character references. The learned Magistrate rightly decided that the references were not relevant to the decision about the fence. For the same reason, they are not relevant to the appeal tribunal’s determination.
- Mr Metcalfe submits that the learned Magistrate was wrong to accept Mr Westera’s evidence because Mr Westera lied under oath. The issue was whether Mr Westera is a surveyor. The learned Magistrate asked Mr Westera whether he was a cadastral surveyor and Mr Westera told the learned Magistrate that he was. Mr Metcalfe now disputes this evidence because Mr Westera is not registered with the Surveyors Board of Queensland. Mr Westera has produced to the appeal tribunal a copy of a certificate for surveying technician dated 20 April 1978 and evidence of membership of the Institution of Engineering and Mining Surveyors Australia dated 15 October 1990. It cannot be said that Mr Westera answered the learned Magistrate’s question untruthfully. In any event, the learned Magistrate was not satisfied with Mr Westera’s evidence about the boundary and ordered that it be surveyed by an independent surveyor. Nothing therefore turns on this issue.
- Mr Metcalfe’s final ground of appeal relates to the merits of the decision itself. He submits that the learned Magistrate proceeded on the basis that there is an automatic right to a fence and failed to consider the ecology and competing considerations of the neighbourhood. In his argument before the learned Magistrate, Mr Metcalfe relied on tribunal cases concerning trees, in which the tribunal considered the competing interest of the neighbours, the ecology of the area and the amenity that the trees provided.
- Section 7(1) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) states that a sufficient dividing fence is required between two parcels of land if an adjoining owner requests a dividing fence. Ms Hall and Mr Westera did request a dividing fence. Therefore, a dividing fence was required. The only question for the learned Magistrate was the nature of the fence.
- Section 12 contemplates that a fence will be constructed on the common boundary unless it is impracticable to construct a fence on the boundary line because of natural physical features.
- Section 13 sets out the criteria for a “sufficient” dividing fence. In residential areas, such as in this case, a fence is sufficient if it is between 0.5m and 1.8m high and consists substantially of prescribed material. “Prescribed material” includes timber palings.
- Section 21 states that adjoining owners are each liable to contribute equally to carrying out fencing work for a sufficient dividing fence. An owner who wants more than a sufficient fence is liable for the cost of the work to the extent that it exceeds the standard of a sufficient fence.
- Section 36 sets out the matters the tribunal may consider when deciding whether a proposed fence is a sufficient fence.
- That is the legislative framework within which the learned Magistrate made his decision, to which he referred in his reasons for decision.
- The learned Magistrate acknowledged the fact that both properties back onto swamp and neither had a back fence. He noted that the fence on the other side of Ms Hall and Mr Westera’s property was a 1.8 metre pine paling fence. He acknowledged Mr Metcalfe’s argument that many other properties in the area did not have dividing fences.
- The learned Magistrate considered the purposes to which the properties were to be used as he was required to do under s 36(b). He acknowledged Mr Metcalfe’s argument about the ecological effect of a fence, particularly in relation to curlews. The learned Magistrate considered Mr Metcalfe’s argument that the type of fence was a matter of nuance and concluded, rightly in my view, that there were no decisions of the tribunal that supported a submission that the considerations relevant to tree cases should be applied to dividing fence cases. The learned Magistrate also noted, again rightly in my view, that in the absence of specific legislation, ecological considerations were not matters that should affect the right to fence.
- The learned Magistrate observed that both parties agreed a sufficient fence was a 1.8 metre timber fence. The only disagreement was whether the fence should extend along the full length of the boundary. The learned Magistrate found that a sufficient fence was one that covered the full line of the boundary.
- Mr Metcalfe is appealing the exercise of the learned Magistrate’s discretion. The Appeal Tribunal will not interfere with an exercise of discretion unless it can be shown that the learned Magistrate acted upon a wrong principle, or made mistakes of fact which affected the decision, or was influenced by irrelevant matters. That the Appeal Tribunal might have exercised the discretion differently is not a basis for changing the decision. It must be shown that the decision is plainly unjust or unreasonable, and involved a clear misapplication of the discretion. There is nothing in the transcript or Mr Metcalfe’s submissions that persuade me the learned Magistrate failed in the proper exercise of his discretion.
- Mr Metcalfe also submits that he was not given the opportunity to negotiate with Ms Hall and Mr Westera. Neighbours are encouraged to attempt to resolve issues about fencing work between themselves. The tenor of correspondence between the parties made it clear that the time for negotiation had passed and that this dispute required the tribunal’s direct intervention.
- There is no reasonably arguable case that the learned Magistrate was in error. Leave to appeal is refused.
 QCAT Act s 142(3)(a)(i).
 Pickering v McArthur  QCA 294 at .
 QCAT Act s 3(b).
 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 36.
 Transcript page 1-6, line 45 to page 1-7, line 10.
 Transcript page 1-7, lines 34, 45.
 Transcript page 1-8, lines 1 – 3.
 Queensland Civil and Administrative Tribunal Rules 2009 (Qld) s 43(1).
 R v Sussex Justices; Ex parte McCarthy  1 KB 256.
 Transcript page 1-7, lines 4 – 10.
 Transcript page 1-8, lines 30 – 32; page 1-17, lines 11 – 16, 30 – 31; page 1-29, line 11.
 Transcript page 1-10, lines 45 – 46.
 Transcript page 1-12, line 35 to page 1-13, line 19.
 Transcript page 1-19, line 1 to page 1-20, line 3.
 Transcript page 1-25, lines 36 – 37.
 Transcript page 1-27, lines 28 – 42.
 Transcript page 1-29, lines 25 – 30.
 Transcript page 1-29, lines 31 – 36.
 Transcript page 1-29, lines 38 – 45.
 Transcript page 1-32, lines 33 – 34.
 Transcript page 1-14, lines 11 – 13.
 Transcript page 1-31, lines 13 – 14.
 Transcript page 1-31, lines 21 – 22.
 Some examples are: page 1-16 lines 16 – 18; page 1-17, line 5.
 Transcript page 1-24, lines 29 – 39.
 Neighbourhood Dispute Resolution (Dividing Fences and Trees) Act 2001 (Qld) s 12(2)(a).
 Ibid s 13(3)(a).
 Ibid s 21(2).
 Transcript page 1-33, line 39 to page 1-34, line 43.
 Transcript page 1-35, lines 7 – 13.
 Transcript page 1-35, lines 14 – 15.
 Transcript page 1-35, lines 14 – 16.
 Transcript page 1-35, lines 35 – 40.
 Transcript page 1-35, line 46 to page 1-36, line 15.
 House v The King (1936) 55 CLR 499, at 504.
 Lovell v Lovell (1950) 81 CLR 513.
 Neighbourhood Dispute Resolution (Dividing Fences and Trees) Act 2001 (Qld) s 30(1).
- Published Case Name:
Jonathon Metcalfe v Pamela Hall and Ralph Westera
- Shortened Case Name:
Metcalfe v Hall
 QCATA 43
20 May 2015