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- Unreported Judgment
Waite v Sayegh QCATA 75
Waite v Sayegh  QCATA 75
Mervyn Stanley Waite
On the papers
Acting Senior Member Hughes
3 July 2017
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF TRIBUNAL BELOW – PARTICULAR CASES – CONTROL OVER PROCEEDINGS – OTHER CASES – where Tribunal has mandate to deal with matters quickly – where Tribunal did not err in listing hearing two weeks after appellant received Notice of Hearing – where Tribunal did not make final orders until hearing some six months after appellant received application – where appellant had sufficient time to respond and was not denied procedural fairness – where Tribunal required accompanying person to leave hearing – where control of proceedings extends to requiring people to leave the room who are being disruptive or preventing Tribunal from carrying out its lawfully prescribed functions – where Tribunal allowed appellant to remain despite interruptions – where Tribunal gave both parties time to explain their cases and explored issues as they arose
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF TRIBUNAL BELOW – PARTICULAR CASES – CONTROL OVER PROCEEDINGS – ADMISSION OF EVIDENCE – where findings based on documentary evidence – where non – compliance with orders is not ground of appeal – where Tribunal gave sufficient reasons – where evidence capable of supporting Tribunal’s conclusions – where miscalculation of figures rather than error leading to substantial injustice
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF TRIBUNAL BELOW – PARTICULAR CASES – CONTROL OVER PROCEEDINGS – ADMISSION OF EVIDENCE – where appellant did not explain why material not submitted earlier – where material would not have important impact on result but at most revealed minor discrepancy in figures
REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – FENCES AND FENCING – ADJOINING LAND – where unlikely that fence constructed of tarpaulins, reinforced grid wiring, tin and shards of asbestos would be ‘the kind of fence normally used in the area’ or ‘capable of being maintained by the adjoining owners’ – where Tribunal’s findings that not ‘sufficient dividing fence’ unremarkable – where Tribunal applied rule that each party should contribute equally to cost of fence and survey – where no reason for Appeal Tribunal to come to different view
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 20, s 21, s 36(c), s 36(d), s 40
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 28(3)(e), s 62(1), s 135, s 143(3)
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 44
Bradlyn Nominees Pty Ltd v Saikovski  QCATA 39
Cachia v Grech  NSWCA 232
Chambers v Jobling (1986) 7 NSWLR 1
Clarke v Japan Machines (Australia) Pty Ltd  1 Qd R 404
Dearman v Dearman (1908) 7 CLR 549;  HCA 84
Drew v Bundaberg Regional Council  QCA 359
Fox v Percy (2003) 214 CLR 118;  HCA 22
Glenwood Properties Pty Ltd v Delmoss Pty Ltd  2 Qd R 388
Gollan v Vaccaneo  QCATA 228
Holloway v Moller  QCATA 160
House v The King (1936) 55 CLR 499;  HCA 40
Lovell v Lovell (1950) 81 CLR 513;  HCA 52
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd  2 Qd R 577
Metcalfe v Hall & Anor  QCATA 43
Piric & Anor v Claudia Tillier Holdings Pty Ltd  QCATA 152
QUYPD Pty Ltd v Marvass Pty Ltd  1 Qd R 41;  QCA 257
Slater v Wilkes  QCATA 12
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
What is this appeal about?
- Mervyn Waite and Ronald Sayegh are neighbours. They cannot agree on their dividing fence. After three adjournments, the Tribunal made a number of orders on 14 March 2017 that effectively required Mr Sayegh to arrange the construction of a dividing fence, with Mr Waite to contribute half the costs of $3,555.00.
- Mr Waite wants to appeal that decision.
- Because this is an appeal from a minor civil dispute, leave is required. In determining whether to grant leave, the Tribunal will consider established principles including whether there is a reasonably arguable case of error in the primary decision, whether there is a reasonable prospect that the appellant will obtain substantive relief, whether leave is needed to correct a substantial injustice caused by some error, and whether there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.
- I will address Mr Waite’s grounds of appeal below.
Was Mr Waite given procedural fairness before the hearing?
- Mr Waite submitted that the claim was filed on 7 September 2016 and the first hearing proceeded on 4 October 2016, “less than the required month”. Although his submissions do not expressly state it, Mr Waite would appear to be suggesting that he was not given sufficient time to respond and was therefore denied procedural fairness.
- Mr Waite does not cite any provision containing the “required month” before proceeding to a hearing. Presumably, Mr Waite is referring to the general requirement for a respondent to file a response to an application within 28 days. However, rule 43(1) of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) makes clear that a party does not have a right to file a response to a fencing dispute.
- Mr Waite would have received the Notice of Hearing shortly after it was printed on 15 September 2016. Even allowing a week for Mr Waite to receive the notice, the Tribunal did not err in listing a proceeding for a hearing some two weeks after Mr Waite received it. It is consistent with the Tribunal’s mandate to deal with matters economically and quickly.
- Moreover, the Tribunal made no final orders at the hearing of 7 September 2016. Instead, the Tribunal gave the parties more time to file evidence. The Tribunal adjourned the application on three occasions and did not make final orders until the hearing of 14 March 2017, some six months after Mr Waite received the application. Mr Waite had sufficient time to respond to the application.
- The Tribunal did not fail to provide procedural fairness before the hearing.
- This ground of appeal is dismissed.
Was Mr Waite given procedural fairness during the hearing?
- Mr Waite submitted that “to be ejected without warning must surely breach court protocol” and that Mr Sayegh’s opening address “should have been curtailed and brought back to the subject at hand”.
- Tribunal members and adjudicators must ensure all issues are discussed and may give a direction at any time and do whatever is necessary for the speedy and fair conduct of the proceeding. Where matters become tense, as was the case here, it can be necessary to assert control over the proceedings. The control of proceedings extends to requiring people to leave the hearing room who are being disruptive or preventing the Tribunal from carrying out its lawfully prescribed functions.
- I have carefully read the transcript. I note that the Tribunal allowed Mr Waite to be present throughout the hearing, even when Mr Waite interrupted and became verbally abusive towards the learned Adjudicator.
- The Tribunal did require Mr Waite’s accompanying person to leave after that person continued making remarks during Mr Sayegh’s evidence. This person was neither a party nor a witness. Mr Waite was not prejudiced by this person’s departure. Rather, the hearing then proceeded with fewer interruptions.
- Parties must also expect some degree of exploration and discussion of issues by Members and Adjudicators during the usual course of a hearing. The Tribunal gave both parties time to explain each of their cases and explored issues as they arose. The Tribunal acted entirely appropriately throughout the hearing, despite considerable pressure and unwarranted behaviour.
- This ground of appeal is dismissed.
Is Mr Sayegh’s alleged non-compliance with orders a ground of appeal?
- Mr Waite submitted that Mr Sayegh had ignored the Tribunal’s order about “the protocol required on seeking payment” and has continued to deny the existence of the retaining wall referred to in the Tribunal’s orders.
- Non-compliance with orders is not a ground of appeal but is a matter of enforcement.
- This ground of appeal is dismissed.
Was the evidence capable of supporting the Tribunal’s findings?
- Mr Waite submitted that the quote that the Tribunal relied upon to make the order was fraudulent. To support this allegation, Mr Waite filed with his appeal application a document that he claims to be his copy of the quote with two discrepancies:
- Mr Waite’s copy of the quote includes an item for $673 whereas the same item in the Tribunal’s copy is for $614; and
- Omitted from the Tribunal’s copy is an additional item of $350 for “supply gate.”
- The document attached to Mr Waite’s appeal application is fresh evidence. The Appeal Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce fresh evidence must satisfy three tests. Could the parties have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?
- An application for leave to appeal is not, and should not be an attempt to reargue a party’s case at the initial hearing. Mr Waite has not explained why he did not submit this material earlier. Moreover, it would not have an important impact on the result of the case as it does not show any intent to defraud and at most reveals a minor discrepancy in figures. Oddly, the discrepancy does not seem to improve Mr Waite’s position from the orders made. This evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the Tribunal.
- Mr Waite submitted that his own submissions were ignored. However, it was not necessary for the Tribunal to detail each factor that it found to be relevant or irrelevant in making his ultimate findings, particularly in the minor civil disputes jurisdiction where the Tribunal’s mandate to deal with matters fairly, quickly and economically is most acute. No judicial reasons can ever state all of the pertinent factors, nor can they express every feature of the evidence that causes a decision-make to prefer one factual conclusion over another.
- I have read the transcript of the hearing. Although the Tribunal did not expressly refer to all of Mr Waite’s submissions when delivering his findings, it is implicit that it preferred the documentary evidence from Mr Sayegh when making its findings. It is not an error for the Tribunal to not explain away each and every submission or item of evidence not considered relevant or of sufficient weight. It is sufficient that the learned Adjudicator’s reasons set out the evidence he considered relevant and the basis for his findings.
- Mr Waite submitted that the Tribunal erred in ordering a contribution to a fence for 42 metres, when 30 metres was already fenced. He referred to apparent discrepancies in a quote for 61.5 metres of fencing filed with the original application, another quote for 42 metres of fencing and another quote for “30 metres plus 1.8 boundary fencing at back of property.” However, the Tribunal’s orders do not refer to any of these quotes. It is clear that the Tribunal did not rely upon these quotes in delivering its findings and nothing turns on their accuracy.
- The Tribunal found that the 30 metres of fence was not a ‘dividing fence’, nor a ‘sufficient dividing fence’, nor a boundary fence and nor was it constructed with the approval of the parties. These are findings of fact.
- The evidence before the Tribunal of the current state of the fence, particularly the photograph marked ‘8A’ shows a leaning structure in disarray that could perhaps loosely be described as a ‘fence’. Whether it was a ‘sufficient dividing fence’ was a matter for the exercise of the Tribunal’s discretion.
- The Appeal Tribunal will not interfere with the exercise of a discretion unless it can be shown that the Tribunal acted on a wrong principle, or made mistakes of fact affecting the decision, or was influenced by irrelevant matters. Just because the Appeal Tribunal might have exercised the discretion differently is not a basis to change the decision: it must be shown that the decision is plainly unjust or unreasonable, and involved a clear misapplication of the discretion.
- It is unlikely that the ‘fence’ shown in the photograph would be the kind of fence normally used in the area or is capable of being maintained by the adjoining owners – generally, fences are not constructed of tarpaulins, reinforced grid wiring, tin and shards of what appears to be asbestos. Having regard to these prescribed factors, the Tribunal’s findings are unremarkable. I find nothing to indicate that the Tribunal acted on a wrong principle, or made mistakes of fact affecting its decision, or was influenced by irrelevant matters.
- Mr Waite also submitted that he should not contribute to the survey costs. Mr Waite’s submissions about survey costs were already put before the Tribunal who specifically addressed them in its reasons. The appeal process is not an opportunity for a party to again present their case. It is the means to correct an error by the Tribunal that decided the proceeding. None of Mr Waite’s submissions advances any error by the Tribunal in ordering him to contribute half the survey costs. It is within the Tribunal’s powers to order a party to contribute to survey costs in this way.
- Nothing in the material or the transcript persuades the Appeal Tribunal that the findings were not open to the Tribunal. The Tribunal applied the rule that each party should contribute equally to the cost of the fence and the survey. The Tribunal’s decision was entirely appropriate and I can find no reason to come to a different view.
- However, the Appeal Tribunal does note the calculation in the final orders includes an amount of $612.00 for ‘repairs to existing fence’. This amount appears as the item ‘repair old fences and plants’ in a quote that was ultimately not referred to in the Tribunal’s findings. Similarly, the survey cost of $1383.00 referred to in the order appears to differ from the invoiced amount of $1350.00, resulting in a discrepancy of $33.00.
- Because this is a miscalculation of figures rather than an error leading to a substantial injustice, it is not a basis to grant leave to appeal. Instead, the Appeal Tribunal will order that the matter be remitted to the original Tribunal for correction under its correction powers.
Should the Appeals Tribunal grant leave to appeal?
- There is no question of general importance for the Appeal Tribunal to determine. There is no reasonably arguable case that the learned Adjudicator was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
What are the appropriate Orders?
- The appropriate Orders are:
- Leave to appeal is refused; and
- The matter is remitted to the original Tribunal for correction of a material miscalculation of figures pursuant to section 135(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 143(3).
 QUYPD Pty Ltd v Marvass Pty Ltd  1 QdR 41.
 Cachia v Grech  NSWCA 232, 2.
 QUYPD Pty Ltd v Marvass Pty Ltd  1 Qd R 41.
 Glenwood Properties Pty Ltd v Delmoss Pty Ltd  2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd  2 QdR 577, 577, 580.
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 44.
 Metcalfe v Hall & Anor  QCATA 43 per Thomas J, .
 QCAT Act, s 3(b), as noted in Metcalfe v Hall & Anor  QCATA 43,  (Thomas J).
 QCAT Act, s 28(3)(e).
 Ibid, s 62(1).
 Gollan v Vaccaneo  QCATA 228.
 All About Landscaping And Fencing Quote dated 1 November 2016.
 Clarke v Japan Machines (Australia) Pty Ltd  1 Qd R 404, 408.
 Bradlyn Nominees Pty Ltd v Saikovski  QCATA 39.
 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 270.
 QCAT Act, s 3, s 4.
 Slater v Wilkes  QCATA 12, , citing QUYD Pty Ltd v Marvass Pty Ltd  1 Qd R 41; Drew v Bundaberg Regional Council  QCA 359, .
 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 271.
 Transcript, pages 1-18 to 1-23.
 Collinson Fencing Quote dated 1 September 2016.
 Campbells Construction And Landscapes Quote dated 31 October 2016.
 Transcript, pages 1-20 to 1-21.
 Dearman v Dearman (1908) 7 CLR 549, 561; Fox v Percy (2003) 214 CLR 118,125-126.
 Chambers v Jobling (1986) 7 NSWLR 1, 10.
 Holloway v Moller  QCATA 160, .
House v The King (1936) 55 CLR 499, 504.
 Lovell v Lovell (1950) 81 CLR 513.
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 36(c).
 Ibid, s 36(d).
 Transcript, page 1-19 lines 20-26, page 1-20 lines 29-34.
 Bradlyn Nominees Pty Ltd v Saikovski  QCATA 39, .
 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 40.
 Ibid, s 21(1), s 40(6).
 Campbells Construction And Landscapes Quote dated 31 October 2016.
 ONF Surveyors Invoice dated 28 October 2016.
 QCAT Act, s 135.
 Piric & Anor v Claudia Tillier Holdings Pty Ltd  QCATA 152,  (Wilson J).
- Published Case Name:
Waite v Sayegh
- Shortened Case Name:
Waite v Sayegh
 QCATA 75
A/Senior Member Hughes
03 Jul 2017