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- Unreported Judgment
Teitzel v Houston QCATA 64
Teitzel v Houston  QCATA 64
Application and appeals
13 March 2018
8 May 2018
THE APPEAL TRIBUNAL ORDERS THAT:
APPEAL – MINOR CIVIL DISPUTE – where the tribunal ordered a wood paling fence be constructed on the boundary line of the parties’ property – where the applicant complains that a sufficient dividing fence was already in place – whether the tribunal failed to adequately consider the sufficiency of the existing fence – whether the tribunal gave adequate reasons – where the tribunal took relevant considerations into account in the exercise of a discretionary power – where leave to appeal is refused
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 36
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 13, 28
Gynther v Mills & Anor  QCATA 11
House v The King (1936) 55 CLR 499
QUYD Pty Ltd v Marvass Pty Ltd  1 Qd R 41
APPEARANCES and REPRESENTATION (if any):
APPLICANT/APPELLANT: Murray Nielsen (Lewis & McNamara Solicitors)
RESPONDENTS: Self represented
REASONS FOR DECISION
- This is a minor civil (fencing) dispute under s 30(3) Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld).
- The disagreement is about whether and how much the applicant should contribute towards the costs of removing and replacing the existing post and wire fence currently separating the parties’ properties.
- The original application was for two sections (14m at the front and 41.5m at the back) of 1.8m hardwood palings to be constructed in keeping with softwood fence (middle section) of the same height the applicant erected without authority, at his own expense, in 2016.
- The tribunal ordered each of the parties to pay half (or $2270) of the total quoted cost.
The fencing statute
- The stated objects of the fencing statute are to provide rules about each neighbours’ responsibility for dividing fences in an effort to avoid disputes arising, and where disputes do arise, to facilitate their resolution.
- A “sufficient dividing fence” is required between 2 parcels of land if an adjoining owner requests one.
- A “sufficient dividing fence” for adjoining residential land is between 0.5m up to a maximum of 1.8m in height consisting substantially of prescribed material.
- Neither adjoining owner may carry out fencing work until they have come to an agreement and worked out their respective contributions.
- In the event of disagreement, the tribunal decides whether a dividing fence is sufficient or not.
- In deciding an application about whether a dividing fence is sufficient, QCAT may (relevantly) consider:
- any pre-existing fence;
- the use of adjoining land;
- the standard and type of fence work in the location; and
- how maintainable the fence is.
- If an owner constructs a dividing fence without authorisation the tribunal may, on application by an adjoining owner, order the fence to be removed, modified or rectified.
Proposed grounds of appeal
- Leave is required to appeal against a tribunal decision in its minor civil dispute jurisdiction.
- The applicant’s written submissions raise a number of questions refined at the hearing of the application to:
- denial of procedural unfairness;
- inadequate consideration;
- irrelevancy; and
- inadequate reasons.
- The applicant must demonstrate that the tribunal made at least one of these legal, factual, mixed or discretionary errors that if not corrected on appeal would be substantially unjust to him.
- The appeal tribunal can only interfere with an exercise of discretion where it was unreasonable or irrational and not merely because a different conclusion can be drawn from the same facts.
- The respondents rely on their written submissions to oppose a grant of leave. They say the hearing was fair enough and the tribunal considered all relevant considerations while ignoring irrelevant ones in finding that the existing fence is not sufficient because it does not keep both parties’ dogs away from each other or afford either neighbour adequate privacy.
- The applicant contends that the tribunal predetermined the outcome and, more specifically, did not afford him a reasonable opportunity to fully present his case because he was not permitted to call evidence or make submissions.
- The applicant also complains that the question and answer format of the hearing focused too heavily on the respondents’ case.
- Reliance is placed on the following statement by the tribunal the applicant says was made at the “beginning” of the hearing:
Look I’m going to make an order because there is no reason why that fencing shouldn’t be, it’s already been, some of it’s been put up there already, three quarters of it has been done, the red section is what you’re seeking on and there is a 50/50, that’s the lowest quote … we have here is the $4540.00, I think it is isn’t it?
- However, as the respondents rightly point out, this statement was made well into the proceeding in the context of a didactic exchange with both sides.
- The procedure for a proceeding is at the tribunal’s discretion, subject to the QCAT Act or any enabling legislation. It is not bound by court rules, practices or procedures and may inform itself in in any way it considers appropriate. It must act in line with the objects of informality, efficiency and non-technicality as much as a proper consideration of the issues permits. Nevertheless, the tribunal has a duty to inform itself of all relevant matters enabling it to make a fair and equitable decision based on the substantial merits of the case. In doing so it must observe the rules of natural justice.
- While the transcript does reveal that proportionately more of the tribunal’s questions were directed to the respondent, this on its own is not enough for a grant of leave to appeal. The applicant has not demonstrated that the tribunal’s approach to informing itself led to a failure to consider the merits of the case and conducting the proceeding differently would have been likely to alter the result.
- I do not accept the contention that the matter was predetermined. The hearing was admittedly quick and informal but that is expressly encouraged under the QCAT Act and, in any case, unsurprising given the contested issues were relatively straightforward.
Failure to give proper consideration
- The applicant complains that the tribunal needlessly ordered the hardwood paling fence be erected for uniformity despite an existing post (or star picket) and wire mesh fence already in place along the remainder of the boundary line.
- He says it is especially unfair for him to have to contribute to the hardwood fence when the wire and mesh fence was erected by him at no expense to the respondents.
- According to him, the tribunal did not consider the sufficiency of the existing dividing fence including by failing to get the “full picture” by not giving the applicant a chance to tender additional photographs. Notably the applicant has not shared any specific details about what his alternative photographs would have shown the tribunal that would have altered its decision.
- The tribunal must ensure, so far as practicable, that all relevant material is disclosed to enable it to decide the proceeding with all the relevant facts and according to the substantial merits of the case.
- Parties to a dispute also have a responsibility for advancing their own best interests by filing written submissions and turning up to support and defend their position. The applicant was present at the hearing but there is no explanation why submissions or other material were not filed prior to the hearing.
- Nor is it clear how exactly the proposed photos demonstrate vitiating error of fact in the tribunal’s assessment of the sufficiency of the existing fence. The wire fence was clearly visible in the respondent’s photographs and it is difficult to tell how additional evidence would have produced a different conclusion.
- As to the type of fence common in rural residential areas – there is rarely complete uniformity in fencing for any area and, even if it should have been raised (noting that there was no strict obligation for the tribunal to consider it), it would probably not have been a determinative factor when balanced against other more persuasive considerations.
- The applicant’s complaint about already having paid for and erected the “unauthorised” fence is without merit.
- Ground three alleges that the tribunal took into consideration irrelevant matters including:
- (a)the respondents claim that they cannot go into their “backyard without being photographed” and needed “hardwood fencing to be put up (for) privacy”;
- (b)the fact that “both parties have dogs on either side which can bark at each other and see each other; and
- (c)the respondents statement that they wanted “…the fence up because of the threatening behaviour (of the applicant) … it’s … just out of control”.
- The tribunal made no comment whatsoever about the last point raised by the respondent and there is no reason to suppose it was a factor in its decision.
- Interfering with the exercise of the tribunal’s discretion is hard to justify where it may consider all the circumstances of the application including the items listed in s 36(a)-(e) of the fencing statute.
- On a reasonable construction, privacy and dog noise fall within s 36(b) which allows the tribunal to consider the purposes for which 2 parcels of adjoining land are used and there is no reason to believe that in considering those purposes undue weight was placed on the considerations complained of.
- The final ground is that inadequate reasons were given and the decision is devoid of a path to reasoning. The applicant relies on his written submissions:
 As stated in paragraph 6 above, the Tribunal Member delivered his decision at the beginning of the hearing and provided no substantive reasons for reaching the decision by reference to the legislative standard for determining if the existing fence was sufficient and if it was not, the reasons why it was not.
 In failing to provide reasons, the Applicant is unaware of the consideration given by the Tribunal Member to the various legislative factors and the Applicant is disadvantaged in respect to formalising an appeal of the decision.
- It is clear from a fair reading of the transcript that the tribunal did consider only relevant issues in accordance with the discretionary factors listed in s 36 of the fencing statute.
- For these reasons leave to appeal is refused as unjustified in light of the assessed prospects of success.
 Unless otherwise stated all references in these reasons are to this Act which is referred to as “the fencing statute”.
 Fencing statute s 3.
 Fencing statute s 11(1).
 Fencing statute s 12(1).
 Fencing statute s 7(1).
 Fencing statute s 13.
 Fencing statute s 31(7).
 Fencing statute s 13(1)(c)(ii).
 Fencing statute s 36.
 Fencing statute s 21(1).
 Fencing statute s 20(1), (4).
 Fencing statute s 17.
 Fencing statute ss 16, 35(1).
 Fencing statute s 39.
 QCAT Act s 1432(3), Schedule 3.
 QUYD Pty Ltd v Marvass Pty Ltd  1 Qd R 41, 46.
 House v The King (1936) 55 CLR 499.
 QCAT Act s 28(1).
 QCAT Act s 28(3)(b)-(c).
 QCAT Act s 28(3)(d).
 QCAT Act ss 13(1), 28(3).
 QCAT Act s 13(2)(a).
 QCAT Act s 3(b).
 Fencing statute s 36(a).
 Fencing statute s 36(b)-(c).
 QCAT Act s 28(2), (3)(e).
 T1-8:25-40; T1-9:45.
 Gynther v Mills & Anor  QCATA 11  (Senior Member Stilgoe).
- Published Case Name:
Teitzel v Houston
- Shortened Case Name:
Teitzel v Houston
 QCATA 64
08 May 2018