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- Unreported Judgment
Walgampola & Anor v Szpalinski & Anor QCATA 20
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Walgampola & Anor v Szpalinski & Anor  QCATA 20
ORIGINATING APPLICATION NO/S:
26 February 2019
12 February 2019
APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – FURTHER EVIDENCE – AVAILABILITY OF EVIDENCE AT TRIAL – where neighbouring property parties in dispute – where evidence as to boundary raised at hearing – where the evidence as to boundary unsatisfactory – where a survey of the common boundary was suggested at hearing and further suggested such would constitute a reopening ground – where a party sought a survey after decision but the other party refused access to the neighbouring property – where application made to file fresh evidence on appeal – where fresh evidence permitted at appeal – whether the appeal was more appropriately able to be determined as a reopening application in the Tribunal below
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 143A
Pickering v McArthur  QCA 294
APPEARANCES & REPRESENTATION:
Self-represented by Lasantha Walgampola
Self-represented by Raszyd Szpalinski
REASONS FOR DECISION
- The appellants and respondents are neighbours in a Brisbane suburb. A dividing fence dispute arose between them.
- The appellants built a house next to the respondent’s property in about 2016. The land area was not great and the houses are close together. On or about the common boundary there is a small “blue” fence approximately 600mm high. There is also a “grey” timber paling fence approximately 1.8m high next to it. The appellants attached fibre cement sheeting to the grey fence. In some places fibre sheets exceeded 2m in height.
- The respondents filed an application in the Tribunal seeking an order that the appellants be directed to remove the fibre cement sheeting and its fittings which they had attached to the grey fence between the properties.
- The matter came on for hearing before an Adjudicator. There was no survey plan of the common boundary available at the time. The respondents maintained that the grey fence was an existing dividing fence on the common boundary. The appellants maintained that the blue fence was on the common boundary which meant the grey fence and the fibre cement sheeting attached to it was within their property and therefore could not be the subject of an order by the Tribunal.
- The learned Adjudicator concluded on the evidence before him that though the evidence was unsatisfactory, it was more probably the case than not that the grey fence was constructed on the common boundary. Accordingly the fibre cement sheeting, though not itself on the common boundary was attached to the dividing fence between the properties and it should be removed. He ordered accordingly.
- The appellants seek to appeal that decision.
- Given this is an appeal from a decision made in the Tribunal’s Minor Civil Dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.
- Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.
- During the hearing the learned Adjudicator commented that what was needed, given the doubt about the true common boundary, was that a survey of the boundary be undertaken. The learned Adjudicator indicated that if the survey was undertaken an application might be made to reopen the proceedings.
- With that suggestion in mind the appellants sought permission from the respondents for access to their property for the purpose of a survey. The respondents however refused their permission.
- The appellants sought leave to adduce fresh evidence of the surveyed common boundary at the hearing of their application for leave to appeal. They said it was not to hand and available to the Tribunal below at the time of hearing. Given the comments of the learned Adjudicator below suggesting survey evidence would have been desirable but was not available at the time of hearing, leave was granted to the appellants to lead such fresh evidence at the appeal.
- Amongst the material tendered as fresh evidence is a copy of a site survey plan drawn by surveyors in March 2016. The site survey plan details what is described as a “timber fence” along or near the boundary between the relevant properties and notes the existence of an old freestanding concrete wall from some form of earlier construction built on or very near to the boundary.
- The appellants submit that the boundary line is depicted on the site survey plan as is the boundary. Further the fence is marked inside the boundary line inside the appellants’ property. Indeed a close perusal of the site survey plan does suggest some care was taken with respect to the marking of the boundary and timber fence because from the old concrete wall through to the footpath in front of the property, the existing fence appears to be drawn separate from the boundary line and inside the appellants’ property. From the other side of the concrete wall through to the backyard back boundary the timber fence appears to be marked on, as opposed to next to, the boundary line itself.
- By s 143A of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’):
Referring matter to Tribunal to consider reopening
(1) This section applies if—
(a) an application or appeal is filed under section 143; and
(b) the appeal Tribunal considers—
- the reasons for the application or appeal may constitute a reopening ground for the applicant or appellant in the proceeding to which the application or appeal relates; and
- the application or appeal could be more effectively or conveniently dealt with if it were taken to be an application under part 7, division 7 for a proceeding to be reopened.
- The appeal Tribunal may refer the matter to the Tribunal to decide whether the proceeding should be reopened.
- If the appeal Tribunal refers the matter—
- the applicant or appellant is taken—
- to have made an application for the proceeding to be reopened under section 138; and
- not to have made an application or appeal under section 143; and
- the appeal Tribunal must give notice of the referral to—
- each party to the proceeding; and
- any other person the Tribunal reasonably considers
should be given notice of the referral.
- A reopening ground for a party to a proceeding includes circumstances whereby a party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen which was not reasonably available when the proceeding was first heard and determined.
- Whilst a new cadastral survey has not eventuated it was the suggestion of the learned Adjudicator that survey evidence about the true common boundary might found a reopening application.
- Whilst the survey plans and other material accepted as fresh evidence on appeal pre-dated the hearing before the learned Adjudicator, the original matter for determination in the Tribunal was not the common boundary between the properties but that the appellants remove attachments to grey fence. The issue about boundaries only arose during the course of the hearing.
- The appellants took steps to obtain a fresh survey of the boundary after hearing as suggested by the learned Adjudicator but the respondents refused access to their land.
- The fresh evidence led at the appeal does appear to constitute significant new evidence not reasonably available at the hearing before the learned Adjudicator. On that basis it provides a potential reopening ground. The survey plan suggests the grey fence is not the common boundary between the properties, at least from the old concrete wall to the front boundary. The learned Adjudicator commented in his reasons for decision that the evidence concerning the boundary was unsatisfactory. He said there was doubt about the correct boundary and a survey:
…and any associated survey report, if and when procured, will give certainty to the position of the common boundary and will lend certainty as to whether or not the respondents contention is correct that the FC sheeting fence is on their land, that is, wholly on their land, or whether it, in fact, is partly or completely on the common boundary. Such a surveying report will also give certainty as to whether or not, as Mr Szpalinski contends, the taller of the timber fences actually sits on the common boundary of the two properties. As I said, for purposes of this application only, I have accepted on the probabilities, absent any evidence to the contrary, that the original timber fence, that is, the higher of the two original fences, does sit on the common boundary.
- The document permitted to be tendered at the hearing of the appeal described as a site survey plan appears to provide some additional more concrete evidence about the line of the timber fence and its relationship to the actual common boundary between the properties.
- The application for leave to appeal would, I conclude, be more effectively or conveniently dealt with if the application for leave to appeal was taken to be an application for a reopening pursuant to part 7, division 7 of the QCAT Act. Orders are made accordingly.
- Published Case Name:
Lasantha Walgampola & Wickrama Senanayake v Raszyd Szpalinski & Andreas Fung
- Shortened Case Name:
Walgampola & Anor v Szpalinski & Anor
 QCATA 20
26 Feb 2019