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Nagel v McDougall QCATA 129
QUEENSLAND CIVIL AND
Nagel v McDougall  QCATA 129
6 August 2019
On the papers
Senior Member Howard, Presiding
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where applicants are seeking to appeal against decision in a minor civil dispute – where tribunal below was required to make a decision about the type of fence to be erected — whether denial of procedural fairness – whether leave to rely upon fresh evidence should be granted – whether leave to appeal should be granted
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 13, s 28, s 28(2), s 28(3)(a), s 28(3)(c), s 28(3)(e), s 29, s 29(1)(a)(ii), s 32, s 142(3)(a)(i)
Bradlyn Nominees Pty Ltd v Saikovski  QCATA 39
Pickering v McArthur  QCA 294
Terera & Anor v Clifford  QCA 181
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
- Mr and Mrs Nagel (‘the Nagels’) are the owners of a residential property at Mooloolaba. Ms McDougall is the owner of an adjoining residential property. The properties are adjoined at the rear of the Nagels’ property and divided by a timber paling fence. The fence is in a poor state of repair. It has been in existence for something in the order of 20 years. The Nagels and Ms McDougall agree that the fence should be replaced and that each of them should contribute to the cost of a new fence. There is a dispute as to the type of fence that should be erected. The dispute has unfortunately become acrimonious, even though both parties live elsewhere.
- The Nagels contend that a steel fence with steel posts should be erected in place of the existing paling fence. Ms McDougall argues that the fence should be replaced with a like fence, that is, a timber fence with rails and timber palings. She proposes that the fence be constructed of treated hardwood known as ‘CCA hardwood’, which is commonly regarded as ‘termite resistant material’.
- Not being able to agree as to the materials to be used for the fence, the Nagels applied to the Tribunal in its Minor Civil Dispute (‘MCD’) jurisdiction seeking an order that Ms McDougall contribute to the cost of a steel fence. In the proceedings, they proposed a Colourbond fence, whereas Ms McDougall proposed a timber paling fence. There is little difference in the cost of the timber fence and the Colourbond fence.
- The MCD proceeding was heard by a Member of the Tribunal. A plethora of material had been filed by both parties to support their respective positions. Ultimately, the Tribunal had to decide the type of fence to be erected. At the commencement of the hearing, the learned Member explained that he had perused the material filed and proceeded to hear oral evidence and oral submissions from both parties espousing the virtues of their respective choices. He then made a decision. He made orders that the fence be replaced with a like fence, that is, a timber fence with Ms McDougall paying the difference in cost over and above the quoted price for a metal fence, but that the parties otherwise pay half of the costs each. The additional amount payable by Ms McDougall is about $70.
- The decision did not involve a decision about a contested question of law. It was a decision made based on the evidence put before the Tribunal by the parties and his findings made on the evidence.
- An appeal from an MCD is not as of right. Section 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides that an appeal against the decision can only be made if the party has obtained the appeal tribunal’s leave to appeal.
- Leave to appeal will usually only be granted when there is a reasonable argument that the decision was attended by error, and an appeal is necessary to correct a substantial injustice caused by the error. An application for leave to appeal and, if successful, the appeal is not simply an opportunity to reiterate the arguments made at the hearing in the hope of obtaining a different outcome. The appellant must identify error made by the Tribunal and consequent substantial injustice that must be corrected on appeal.
- The Nagels submit in the appeal proceedings that they were denied procedural fairness in the manner in which the Member conducted the hearing. A denial of procedural fairness, if made out, is an error of law.
- It is alleged that the learned Member gave Ms McDougall an unfair advantage in that he prompted her to provide answers which were ultimately pivotal to his decision. In particular, the Nagels submit that Ms McDougall was encouraged to respond to leading questions by the Tribunal, including about whether the timber proposed to be used in the fence was CCA treated.
- We have read a copy of the transcript of the hearing and the evidence before the Tribunal. The learned Member’s question about whether the timber was treated was of no consequence because the quote provided by Ms McDougall clearly showed that CCA treated timber was to be used. That is, the evidence about CCA treatment was already before the Tribunal: the question was merely confirmatory in nature. There were other questions about maintenance of the fence and the cost of replacing panels as compared to palings. It is contended that the learned Member went too far in participating in the hearing rather than just letting Ms McDougall give her evidence.
- The objects of the QCAT Act require the tribunal, ‘to deal with matters in a way that is accessible, fair, just, economical, informal and quick’. Further, the Tribunal must comply with sections 28 and 29 in determining proceedings before it. Section 28 provides relevantly that the tribunal must act fairly and according to the substantial merits of the case. In doing so, it must observe the rules of natural justice; but it may inform itself in any way it considers appropriate; and must ensure as far as practicable that all relevant information is disclosed to it, so that it may make its decision with all the relevant facts. Pursuant to s 29, it must relevantly, take reasonable steps to ensure that each party understands the nature of the assertions made and (where applicable) the legal implications made in the proceeding.
- For the Tribunal to comply with its obligations in ss 28 and 29, it must take active steps in conducting the hearing, in a manner that is fair as a matter of practicality to both parties. The presiding Member must ensure relevant issues are addressed and relevant evidence is ascertained. In the busy MCD list, this means the Tribunal must ask relevant questions of persons appearing before it. Also, in deciding an MCD, s 13 of the QCAT Act imposes an obligation on the Tribunal to ‘make orders that it considers fair and equitable to the parties to a proceeding in order to resolve the dispute but may, if the Tribunal considers it appropriate, make an order dismissing the application’. That is, the orders must be fair as between to the parties based upon consideration of the evidence and relevant factors at law.
- In our view, the transcript does not demonstrate that there has been a denial of procedural fairness. Rather, it reveals that the learned Member was familiar with the filed material and that he gave Mr Nagel an opportunity to further present the case on behalf of the Nagels.
- The Nagels also contend that the learned member ‘cut them off and instructed them not to speak when he gave his decision’. The transcript of the hearing reveals that at the conclusion of hearing from the parties, the learned Member properly informed them that he was going to give his reasons for his decision and that he did not ‘want to have other voices cutting across my voice as I give my reasons’. His reasons then went on to consider the evidence given by both the Nagels and Ms McDougall in coming to his decision. Once both parties have had the opportunity to make their respective cases, by providing evidence and making their submissions, it was for the tribunal to make and deliver its decision. At this stage, no further evidence or submissions are received. There is nothing inappropriate in the course taken by the learned Member.
- Further, the Nagels contend that the learned Member failed to have regard to the fact that metal fencing is on the prescribed list under the Neighbourhood Disputes (Dividing Fences & Trees) Act 2011 and that he did not give sufficient weight to the fact that metal fencing was more suited to the area. As discussed, the learned Member had to decide between the construction of a metal fence or a timber fence having considered all of that evidence. He found that it was appropriate for the fence to be replaced on a like‑for-like basis, that is, with a timber fence.
- In reaching that conclusion, the learned Member’s reasons explain that he not accept that Colourbond fences are maintenance free. He found that both types of fencing require maintenance. He determined that the Nagel’s primary issue was one of privacy, but that Ms McDougall’s evidence, which a fair reading of his reasons for decision make it sufficiently clear he accepted, was to the effect that there was nothing at the back of her house except garbage bins. He considered that either type of fence would be appropriate in the area, based on the mixture of fences in the area in the evidence relied upon by the parties. It is clear from the reasons for decision that the Tribunal considered evidence and submissions from both parties about the suitability of the fencing they each proposed. It was open to the learned Member to conclude as he did based on the evidence.
- There is nothing put before the Appeal Tribunal which would lead to a conclusion that in determining the suitability of metal fencing vis-a-vis timber fencing, the Tribunal erred in taking into account what the Nagels describe as ‘insufficient considerations’; failed to take ‘relevant considerations into account’; or that there was ‘an absence of evidence in the decision’.
- Finally, the Nagels contend that false or misleading information was provided to the Tribunal by Ms McDougall. In particular, they submit that a notice to contribute to fencing work that was part of the bundle of evidence relied upon by Ms McDougall during the hearing, but signed by her husband, who is not a registered owner of her property was invalid. It appears they contend that the notice should be, or should have been declared unlawful. However, nothing turns on the notice, there having been subsequent notices issued by both parties. He did not need to consider whether to make a declaration.
- The Nagels also say that Ms McDougall falsely and likely knowingly, after some hesitation, gave evidence that the other fences on her property were timber. They submit that as she has owned the property for over 10 years that she must have known the nature of the existing fencing. Further, they contend that visibility from their property was limited. However, they now assert that a fence between Ms McDougall’s property and another neighbour is predominantly brick with lattice trim, not a timber fence as claimed. They now seek to rely upon fresh evidence, including a photograph of that fence. Ms McDougall submits that leave should be refused to the Nagels, but has also in response seeks leave to rely upon fresh evidence, demonstrating timber sections of the fence referred to and other matters. In essence, she confirms that the fence between the her property and the Nagels’ property is a timber paling fence, as are other fences between her property and other neighbouring properties, except that a limited section of the fence with one other neighbour is combined brick and wooden in construction. Both parties submit that the other seeks to mislead in their applications for fresh evidence.
- Fresh evidence will usually only be allowed when it was not reasonably available to a party and able to be provided at the original hearing; it is credible; and it is important in that it would likely have affected the outcome. The evidence now sought to be relied upon was reasonably available to a diligent litigant. Further, it is apparent that there is a discrete section of fencing on Ms McDougall’s property, which has a brick frame has timber sections. We do not consider that the fresh evidence from either party would have affected the outcome of the MCD hearing. Leave to rely upon it is therefore refused. In view of the findings above, the applications for leave to rely upon fresh evidence are dismissed.
- No error has been demonstrated. Therefore, leave to appeal is dismissed.
Terera & Anor v Clifford  QCA 181; Pickering v McArthur  QCA 294, .
Bradlyn Nominees Pty Ltd v Saikovski  QCATA 39.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3 (‘QCAT Act’).
 Ibid s 28(2).
 Ibid s 28(3)(a).
 Ibid s 28(3)(c).
 Ibid s 28(3)(e).
 Ibid s 29(1)(a)(ii).
- Published Case Name:
Nagel v McDougall
- Shortened Case Name:
Nagel v McDougall
 QCATA 129
Senior Member Howard, Member Oliver
06 Aug 2019