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Lloyd v Donnelly QCATA 104
Lloyd v Donnelly  QCATA 104
Application and Appeals
29 August 2017
28 September 2017
THE APPEAL TRIBUNAL ORDERS THAT:
APPEAL – LEAVE TO APPEAL – DIVIDING FENCE DISPUTE – where applicant alleges denial of procedural fairness – where applicant disputes fence height and condition findings – where applicant contends that orders are unlawful for failure to meet council requirements – where applicant disputes order for equal contribution to the fence
APPEARANCES and REPRESENTATION (if any):
Mr Forostenko appeared as agent for the respondent
REASONS FOR DECISION
- The adjudicator in this dividing fence case ordered the erection of a replacement 1.8 metre x 57 metre paling fence to provide greater privacy, utility and child safety, but limited the applicant’s contribution to 30%.
- The remaining part of the boundary fence (excepting the flood gate) was also held to be in such a state of disrepair as to warrant replacement with costs (estimated at $3,290 ex GST) to be shared equally between the parties. Likewise, the $1,180 (ex GST) cost of the pivot arm flood gate (provided it complies with the Sustainable Planning Act 2009) was to be shared equally between the parties.
- The applicant was ordered to contribute $4,677.90 to the fence’s construction within 30 days of being notified of its completion. She applies for the order to be set aside on 35 stated grounds, even though the new fence has already been installed and paid for.
- The named respondent was too sick to attend the oral hearing but authorised her husband, Mr Forostenko, to represent her interests.
- The applicant did not object and permission for him to act as agent was granted.
- Her appeal case, in a nutshell, is that the adjudicator was misled by misinformation and his own mistaken opinion into ordering the removal of a legally sufficient fence and replacing it with one that is not high enough off the ground, made of unsuitable materials, installed by an unqualified fencing contractor and generally unfit for its semi-rural location.
- During oral argument the applicant focussed on a lesser number of discrete matters in support of her complaint. First, she says that she was not given a fair hearing and the contest was unequal because the respondent was represented by her husband. The applicant argued her own case before the adjudicator, but contends that she would have used a better advocate if she knew in advance the tribunal would depart from the usual rule of self-representation.
- I can understand that she felt outnumbered and even intimidated by the tribunal’s procedures, however there is no indication of objective unfairness or substantial injustice resulting from those procedures in this case.
- The applicant’s second grievance is that her (telephone) witnesses were excluded from the hearing room and were overly aggressively cross-examined. In contrast, she says that the respondent’s’ husband was allowed not only to act as a non-party advocate, but gave misleading, unsworn evidence from the well of the courtroom without any opportunity given to her to cross-examine him. She claims this afforded the respondent an unfair forensic advantage.
- However, the case was really a matter of impression and degree, based largely on the interpretation of photographic and survey evidence, rather than the credibility or overall performance of rival witnesses. No unfairness or substantial injustice is discernible from the transcript or the adjudicator’s reasons.
- The third issue the applicant raises relates to findings about the height and condition of the old fence. The adjudicator considered the photographic evidence and concluded at  that the disputed fence was “in an extremely deteriorated condition”. The old boundary fence provided little, if any, privacy and was past repairing. The applicant asserts that the adjudicator ignored “irrefutable” evidence that the fence was 1-1.2 metres high and accepted the respondent’s false evidence that is was only 70cm in height. The adjudicator actually found (at ) that the height of the fence “varies” and “goes as low as 70cm” in places.
- The applicant’s argument that the finding that the 70cm high fence was a safety risk to the respondent’s children (again at ) was against overwhelming inferences to the contrary is not sustainable. The assessment of risk is a notoriously uncertain process with no uniquely right answer. The adjudicator’s opinion – based on ‘common knowledge’ and the respondent’s evidence – was not an unreasonable one in the circumstances.
- Fourthly, the applicant complains that the orders are unlawful and all three sections of the new fence breach by-laws or government policy. The floodgate, she says, is non-compliant because it is not only unnecessary but is below the bank level. The 90 metre section of the mesh fence over the flood corridor breaches BCC Plan 2014 s 188.8.131.52 PO11 AO11 because it is not 30cm off the ground and prevents debris and animals from escaping rising waters. She claims the 57 metre paling fence contravenes BCC Plan 2014 Bushfire s 184.108.40.206 because it is within 20 metres of her house.
- The issue on appeal is whether the orders as made are lawful and reasonable, not whether the new fence as built is regular. There is nothing in the reasons that shows any breaches of council plans or policies were authorised or sanctioned. In any event, the respondent denies any breach and the tribunal is not in a position to resolve disputed facts.
- The applicant’s final complaint is that the cost of the whole 206 metres (not just the 57 metres of paling fence) should have been split 70:30. However, no error is evident in the finding (at  and ) that the flood gate and balance of the mesh/wire fence were of a standard required of a ‘sufficient dividing fence’. It is therefore appropriate that the parties equally contribute to the cost of this portion of the fence.
- The application for leave is devoid of legal merit and refused accordingly.
- Published Case Name:
Lloyd v Donnelly
- Shortened Case Name:
Lloyd v Donnelly
 QCATA 104
28 Sep 2017