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Pollard v Fitzgibbon[2019] QCATA 42

Pollard v Fitzgibbon[2019] QCATA 42

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Pollard & Anor v Fitzgibbon & Anor [2019] QCATA 42

PARTIES:

CAROL POLLARD

and

GERRY POLLARD

(appellants)

v

ROSANNE FITZGIBBON

and

PHILLIP FITZGIBBON

(respondents)

APPLICATION NO/S:

APL206-18

ORIGINATING APPLICATION NO:

Claim MCDO460-17 (Southport)

MATTER TYPE:

Appeals

DELIVERED ON:

9 April 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

Leave to appeal against the decision made on 20 July 2018 in Claim MCDO460-17 Southport is refused.  The appeal therefore fails.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – leave to appeal – where appellant sought leave to appeal against Adjudicator’s decisions about sufficiency of a dividing fence and the correct contributions to be made towards the costs of its erection – where Adjudicator extended time to apply to the tribunal for a contribution – whether any reasonably arguable grounds of appeal

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIOD – POWER OF COURT TO EXTEND LIMITATION PERIOD – where section 32 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) permits an application in a fencing dispute to be made to the tribunal within 2 months after a contribution notice is given ­– where section 61(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) seems to permit the time period to be extended – whether this is open to the tribunal in the light of section 43A of the Limitations of Actions Act 1954 (Qld) – whether the time period is a ‘modifying provision’ and if so whether it is inconsistent with the power to extend time in section 61 – whether the power to extend the time period in section 61 is ousted – whether the Adjudicator was right to extend time

Acts Interpretation Act 1954 (Qld), s 14(1), s 14(4)

Limitations of Actions Act 1954 (Qld), s 43A

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 21, s 27, s 30, s 31, s 32, s 38, s 39

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(a), s 4(b), s 6, s 7, s 33(3), s 61(1), s 143(4)

Aurisch v Millsons Pty Ltd and Others [2011] QCAT 245

Bull v Porteus [2018] QCATA 100

Campaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney-General & Ors [2016] QCA 37

Eco-Builder Pty Ltd v Queensland Building and Construction Commission [2018] QCAT 59

Harper Property Builders Pty Ltd v Queensland Building and Construction Commission [2018] QCATA 70

McLachlan v Real Tenants – Real Property Management ACN 130683297 [2011] QCAT 665

Pelechowski v The Registrar, Court of Appeal (S62-1998) [1999] 198 CLR 435

Queensland Building and Construction Commission v Watkins [2014] QCA 172

Ragless v Prospect District Council [1922] SASR 299

Raymond v Doidge [2012] QCAT 163

Ryan v Cornwall [2010] QCAT 212

Stewart v Penrose [2017] QCATA 119

Watkins v Queensland Building and Construction Services [2013] QCAT 535

 

REPRESENTATION:

 

Appellants:

Self-represented

Respondents:

Self-represented

APPEARANCES:

 

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).

REASONS FOR DECISION

  1. [1]
    This is an appeal in a fencing dispute heard by an Adjudicator on 20 July 2018 sitting in Southport.  Mr and Mrs Fitzgibbon applied to the tribunal for a contribution from their neighbours Mr and Mrs Pollard, towards their expenditure on a dividing fence between their properties.  They claimed that they had done urgent fencing work when they removed the existing dilapidated timber fence and erected a new fence.
  2. [2]
    There was an issue at the hearing before the Adjudicator whether the work done by Mr and Mrs Fitzgibbon was indeed urgent fencing work.  If not, they should have served a notice to contribute under section 31 and not done any work without agreement or an order from the tribunal.
  3. [3]
    The adjudicator decided that the work done by Mr and Mrs Fitzgibbon was urgent fencing work.  There is no appeal against that finding.
  4. [4]
    Having made that finding, the Adjudicator proceeded to consider the appropriate contributions and ordered Mr and Mrs Pollard to pay half the cost of the new fence.
  5. [5]
    Mr and Mrs Pollard now appeal against the order.  There are two grounds of appeal:-
    1. (a)
      Ground 1. 50% contribution was unfair because the new fence was to a standard greater than the standard for a sufficient dividing fence (which would have been a 1 metre wooden fence) and section 21(2) of the Act provides in such circumstances those benefiting should pay a greater proportion.
    2. (b)
      Ground 2. The application to the tribunal was filed out of time, the time limit being 2 months from the date of the notice to contribute. 
  6. [6]
    Work to erect the fence was started on 17 January 2018 and the notice to contribute was given on 19 January 2018.  The fence was completed on 21 January 2018.  The fence cost $2,717 and the notice to contribute sought a contribution of $1,358.50 being 50% of the total cost.
  7. [7]
    The application to the tribunal for a contribution was made on 22 June 2018.  In accordance with section 32(6) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (NDA) it should have been made by midnight on 20 March 2018, being 2 months after the giving of the notice of contribution.  Mr Fitzgibbon explained why the application was late.  He and his wife had been corresponding with Mr and Mrs Pollard hoping that they would change their mind about contributing.  Then eventually they decided this was not going to happen, so they brought the application.
  8. [8]
    In support of the argument that 50% was unfair, Mr and Mrs Pollard say that the old wooden fence was 1 metre high, the new fence was 2 metres high and was to the benefit of Mr and Mrs Fitzgibbon for their privacy and to secure their dog or dogs.  They say that the fence is a safety hazard for pedestrians when they are exiting from their driveway.  They also say that the work was done despite their stated disagreement and request for the work to stop.
  9. [9]
    In answer, Mr and Mrs Fitzgibbon say that the fence is actually 1.8 metres high and Mr and Mrs Pollard agreed to this and to the quote for the new fence, and never suggested a lower fence, but then objected to the new fence after the work started.  They deny that it is a hazard to pedestrians.  They say the fence they erected was reasonable having regard to the layout of the buildings and their height, and that Mr and Mrs Pollard had erected a 1.8 metre fence on the other side.  They say the Adjudicator considered all the arguments about what was reasonable at the hearing.
  10. [10]
    The Appeal Tribunal has obtained a transcript of the hearing.  Unfortunately for cost and copyright reasons this cannot be given to the parties.  From the transcript it can be seen that at the hearing the Adjudicator heard evidence and submissions from the parties, read a number of documents submitted by them, and looked at photographs.
  11. [11]
    At the hearing, Mr Pollard said that a 1.8 metre Colorbond fence had been agreed, but that a 2 metre fence had been erected,[1] that the correct process had not been followed and that they had not been properly consulted.  Mr Fitzgibbon denied this, saying that the quote had been accepted by the Pollards before the work was started but then they refused to contribute.
  12. [12]
    In his decision, the Adjudicator accepted that the work done by Mr and Mrs Fitzgibbon was urgent fencing work under the NDA because of the extremely poor condition of the existing fence.  He also found that there had been a discussion about the new fence in which Mrs Pollard had agreed the quote from the fencing contractor who did the work.  He found that the fence as erected was 2 metres but it reduced to 1.8 metres where it met a side fence.  But he found that this did not affect the cost to any significant degree, and it did not affect the question of suitability.  He found that the fence as erected was not out of character and was a suitable height.  As erected, it was a sufficient dividing fence.  The starting point was 50% contribution and there was no reason to deviate from it.  On that basis the only defence to the claim for a contribution of 50% was the time point.
  13. [13]
    On the time point, the Adjudicator acknowledged that the application to the tribunal was more than 3 months late.  He found the reasons given by Mr and Mrs Fitzgibbon for being out of time, that they had delayed the application in the hope that there would be an agreement reached about payment, to be reasonable.  He found that there was no prejudice to Mr and Mrs Pollard caused by the delay.  He considered that if he were to dismiss the claim because it was out of time, Mr and Mrs Fitzgibbon could simply serve another contribution notice and make another application in time, which made no sense bearing in mind both parties would have to attend another hearing.  So he extended the time to make the claim to the date when it was brought.

Ground 1 of the appeal

  1. [14]
    The difficulty here is that the Adjudicator considered all the points put to him by both sides on the question of what was a sufficient dividing fence and he found as a fact that the fence as erected was a sufficient dividing fence.  There is no doubt that this finding was open to the Adjudicator on the evidence.  As such it cannot be challenged on appeal, because an appeal is not an opportunity merely to have a second chance to persuade the tribunal about a particular finding of fact. 
  2. [15]
    On the basis found by the Adjudicator that the fence as erected was a sufficient dividing fence, then he was right to say that the starting point for the contributions was 50%.[2]  When assessing contributions, upon his findings that the additional height of the fence did not affect the cost to a significant degree nor the suitability of fence, he was right not to deviate from the 50% starting point.  Again those findings cannot be challenged in this appeal because they were clearly open to the Adjudicator on the evidence. 
  3. [16]
    There are no merits in this ground of appeal.

Ground 2 of the appeal

  1. [17]
    I have no doubt that, provided he had power to do so, the Adjudicator was right to extend time to allow the claim to proceed.  He was right to say it made no sense to refuse to extend time, bearing in mind all that Mr and Mrs Fitzgibbon needed to do was to serve another contribution notice and then start again in the tribunal if there was no agreement.  The explanation for the delay from Mr and Mrs Fitzgibbon, that they were hoping that matters could be agreed in correspondence with their neighbours, was a good one, as the Adjudicator said.  Indeed the NDA encourages attempts by neighbours to resolve their disputes informally.[3]
  2. [18]
    There is some uncertainty however, as to whether the Adjudicator had the power to extend the time as he did.

Did the adjudicator have power to extend time under section 32?

  1. [19]
    The doubt about whether the tribunal can extend the time to bring a fencing dispute in the tribunal arises from Bull v Porteus [2018] QCATA 100.  That was an Appeal Tribunal case in which an application had served a contribution notice under section 31 but it was served late.  The Adjudicator who heard the dispute decided that he had no jurisdiction to extend time to bring the dispute to the tribunal.  However, he then went on to make a consent order agreed by the parties.  One party then appealed not against the consent order, but seemingly because there were aspects of the fencing dispute which had not been decided by the Adjudicator.  On appeal therefore, one of the legal issues to be resolved was whether the tribunal could have extended time to bring a fencing dispute to the tribunal.  If so, perhaps the Member should have done that and heard the fencing dispute in full as the appellant wished.  However, the Member hearing the appeal decided that there was no jurisdiction to extend the time and dismissed the appeal accordingly. 
  2. [20]
    The contribution notice given in Bull was under section 31 for prospective fencing work, and in the appeal before me the contribution notice is under section 32 which covers urgent fencing work.  I need to come back to the rationale for the Member’s decision in Bull, but first it is necessary to look closely at the two sections.

31 Notice to contribute for fencing work

  1. (1)
    An owner may require the adjoining owner to contribute, under this chapter, to the carrying out of fencing work for a dividing fence by giving a notice to the adjoining owner.
  1. (2)
    The notice must be in the approved form and state the following—
  1. (a)
    a description of the land on which the fencing work is proposed to be carried out and, if the fencing work is to construct or replace a dividing fence, the line on which it is proposed to construct or replace the fence;

Note—

A dividing fence must ordinarily be constructed on the common boundary—see section 12.

  1. (b)
    the type of fencing work proposed to be carried out;
  1. (c)
    the estimated cost of the fencing work to be carried out including the cost of labour and materials.
  1. (3)
    The notice must be accompanied by a copy of at least 1 written quotation stating the estimated cost of the fencing work to be carried out.
  1. (4)
    The owner giving the notice may propose that any cost of the fencing work to be carried out is to be borne other than in equal proportions.
  1. (5)
    For subsection (4), the notice must state the proposed proportions.
  1. (6)
    If, within 1 month after the notice is given, the adjoining owners have not agreed about the proposed fencing work to be carried out and their contributions to the proposed fencing work, either adjoining owner may, within 2 months after the notice is given, apply to QCAT for an order under section 35.

Note—

An adjoining owner may contribute by a payment of an amount or provision of labour or materials.

32 Notice to contribute for urgent fencing work

  1. (1)
    This section applies if an owner carried out fencing work under section 28.
  1. (2)
    The owner may require the adjoining owner to contribute, under this chapter, to any reasonable cost incurred for the fencing work by giving a notice to the adjoining owner.
  1. (3)
    The notice must be in the approved form and state the following—
  1. (a)
    a description of the land on which the fencing work was carried out;
  1. (b)
    the reason urgent fencing work was required;
  1. (c)
    the type of fencing work carried out;
  1. (d)
    any cost incurred for the fencing work and a receipt for the cost.
  1. (4)
    The owner giving the notice may propose that the contribution to carrying out the fencing work is to be borne other than in equal proportions.
  1. (5)
    For subsection (4), the notice must state the proposed proportions.
  1. (6)
    If, within 1 month after the notice is given, the adjoining owners have not agreed about their contributions to carrying out the fencing work, either adjoining owner may, within 2 months after the notice is given, apply to QCAT for an order under section 35.
  1. [21]
    Each of these sections permit an application to the tribunal within a certain period after the happening of an event, that is within 2 months after the notice to contribute is given.
  2. [22]
    Any extension of the 2 months’ time by the tribunal would need to be under section 61 of the QCAT Act which reads:-

61 Relief from procedural requirements

  1. (1)
    The tribunal may, by order—
  1. (a)
    extend a time limit fixed for the start of a proceeding by this Act or an enabling Act; or
  1. (b)
    extend or shorten a time limit fixed by this Act, an enabling Act or the rules; or
  1. (c)
    waive compliance with another procedural requirement under this Act, an enabling Act or the rules.
  1. (2)
    An extension or waiver may be given under subsection (1) even if the time for complying with the relevant requirement has passed.
  1. (3)
    The tribunal can not extend or shorten a time limit or waive compliance with another procedural requirement if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party or potential party to a proceeding.
  1. (4)
    The tribunal may act under subsection (1) on the application of a party or potential party to the proceeding or on its own initiative.
  1. (5)
    The tribunal’s power to act under subsection (1) is exercisable only by—
  1. (a)
    the tribunal as constituted for the proceeding; or
  1. (b)
    a legally qualified member, an adjudicator or the principal registrar.
  1. [23]
    When analysing the correct test to ascertain the extent of the powers in section 61 and whether they can be applied to section 32 of the NDA I will need to review the following:-
    1. (a)
      The effect of the heading to section 61 which might confine the operation of section 61 to ‘procedural requirements’.
    2. (b)
      The effect of section 43A of the Limitations of Actions Act 1954 (Qld) which has been said to remove any power of the tribunal to extend time to start proceedings.
    3. (c)
      Since the NDA is an enabling Act, whether the time limit in section 32 is a ‘modifying provision’ and therefore inconsistent with any power in section 61 to extend time to start proceedings under that section.

The effect of the heading to section 61

  1. [24]
    The powers in section 61 are in three categories:-
    1. (a)
      A power to extend a time to start a proceeding in section 61(1)(a).  On the basis that the tribunal would have no jurisdiction to hear an originating application filed beyond the time allowed, then on the face of it, this power gives the tribunal jurisdiction to extend that time.  If such an order is made, then the tribunal would have jurisdiction to hear the originating application after all.
    2. (b)
      A power to extend or shorten a time limit in section 61(1)(b).  This clearly applies to time limits for steps in proceedings which are already underway.  But it seems also to apply to time limits for steps which are necessary before proceedings may be started.  This is the way it was understood in Campaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney-General & Ors [2016] QCA 37, which considered the provisions of the now repealed Property Agents and Motor Dealers Act 2000 (Qld) (PAMDA).  By the provisions of that Act, a person had a certain period of time within which they could make a claim against the fund.  If a claim was made beyond the time, then the Chief Executive was required to give the claimant a notice stating that it was out of time but explaining that the person had 14 days to apply to the tribunal for an extension of time to make the claim.  Impliedly the provisions imposed a time limit of 14 days to make such an application to the tribunal.  The question for the Court of Appeal, which it decided in the affirmative, was whether the tribunal could extend the period of 14 days in which to make the application to the tribunal.  This was decided having regard, not to section 61(1)(a), but to sections 61(1)(b) or (c).
    3. (c)
      A power to waive compliance with another procedural requirement in section 61(1)(c).  This must refer to requirements which are not in the form of time limits, since those are dealt with in 61(1)(a) and 61(1)(b).
  2. [25]
    In this appeal we are concerned with the type (a) or (b) power.  The NDA is an enabling Act,[4] so sections 61(1)(a) and 61(1)(b) are engaged.
  3. [26]
    The heading of section 61 is ‘Relief from procedural requirements’.  Headings of sections in Queensland legislation are part of an Act enacted after 30 June 1991.[5]  The question arises whether this means that section 61(1) only applies to a procedural requirement and not one which has the effect of enlarging the jurisdiction of the tribunal.  If the heading does restrict the power in section 61(1) then the tribunal would never have power under section 61 to extend time so as to give itself jurisdiction. 
  4. [27]
    There are two notes to the QCAT Act which demonstrate that the heading is not intended to have this restrictive effect.[6] 

Note to section 33(3)

The note says that the tribunal may extend the 28 days within which an applicant must bring an application for an external review of a reviewable decision.

Note to section 143(4)

The note says that the tribunal may extend the period of time within which an appellant must file an appeal from the tribunal.

  1. [28]
    In both cases, the tribunal by exercising its power to extend time, is giving itself jurisdiction over the matter before it, where otherwise it would not have jurisdiction.  The situations arising under sections 33(3) and 143(4) cannot be said to be ‘procedural requirements’ since they go directly to jurisdiction.
  2. [29]
    In Pelechowski v The Registrar, Court of Appeal (S62-1998) (1999) 198 CLR 435, Kirby J considered the effect of headings on the meaning of legislative provisions and said at [127]:-[7]

The established rule applied by this Court has been that the headings in a statute … can be taken into consideration in determining the meaning of a provision where that provision is ambiguous, and may sometimes be of service in determining the scope of a provision.  However, where the enacting words are clear and unambiguous, the title, or headings, must give way, and full effect must be given to the enactment.

[quotation marks and footnotes omitted]  

  1. [30]
    Here the words of section 61(1) are clear and unambiguous.  They clearly give the tribunal power to extend time for the start of a proceeding even if the effect of this is that the tribunal is giving itself jurisdiction to hear the proceeding.
  2. [31]
    Therefore, I do not think the power in section 61(1) is diminished by the heading of the section.

The effect of section 43A

  1. [32]
    Ryan v Cornwall [2010] QCAT 212 and McLachlan v Real Tenants – Real Property Management ACN 130683297 [2011] QCAT 665 held that section 43A of the Limitations of Actions Act 1954 (Qld), has the effect of extinguishing a cause of action (so that it cannot be revived) once the time limit to start the proceedings has passed.  Hence it was said, since express statutory authority was necessary to revive such an expired cause of action, and section 61 did not contain such authority, the tribunal could not use the power in section 61 of the QCAT Act to extend time to start proceedings once that time has passed.
  2. [33]
    Section 43A provides as follows:-

43A Characterisation of limitation laws

  1. (1)
    In this section— limitation law means a law (including, but not limited to, this Act) that provides for the limitation or exclusion of any liability or the barring of a right of action for a claim by reference to the time when a proceeding on, or the arbitration of, the claim is started.
  1. (2)
    A limitation law of the State is to be regarded as part of the substantive law of the State.
  1. (3)
    This section applies to a cause of action that arose before the commencement of this section but does not apply to a proceeding started before the commencement.
  1. [34]
    That this section has this effect however, was doubted in Aurisch v Millsons Pty Ltd and Others [2011] QCAT 245, [16]-[30].  That case cited then recent Federal Court authority and other authorities which demonstrated that the purpose of section 43A was to determine the correct choice of law rather than to alter the usual rule that limitation periods interfere with a right to a remedy, rather than the right itself.
  2. [35]
    The argument in Aurisch was found to be compelling in Raymond v Doidge [2012] QCAT 163, [59].  The effect of section 43A was referred to in Stewart v Penrose [2017] QCATA 119, [85] without expressing a view (the appeal was determined on another point).
  3. [36]
    I continue to find the arguments about the effect of section 43A in Aurisch to be compelling.  I think the power in section 61 is unscathed by the effect of section 43A.

The modifying provisions argument

  1. [37]
    The modifying provision argument relies on section 7(2) of the QCAT Act which states that a modifying provision in an enabling Act prevails over the provisions of the QCAT Act to the extent of any inconsistency between them.  Since a time limit to start proceedings in an enabling Act is within the definition of a ‘modifying provision’ in section 6(7)(a), there is an inconsistency between such a time limit and the power in section 61 to extend it.  By section 7(2), the inconsistency needs to be resolved in favour of the enabling Act.  Hence the tribunal does not have power under section 61 to extend such a time limit.
  2. [38]
    It is necessary to set out sections 6 and 7 of the QCAT Act in full:-

6 Relationship between this Act and enabling Acts generally

  1. (1)
    This Act provides for the tribunal’s jurisdiction and related functions, and the practices and procedures for proceedings before the tribunal.
  1. (2)
    An enabling Act is—
  1. (a)
    an Act, other than this Act, that confers original, review or appeal jurisdiction on the tribunal; or
  1. (b)
    subordinate legislation, other than subordinate legislation under this Act, that confers review jurisdiction on the tribunal.
  1. (3)
    An enabling Act conferring original jurisdiction on the tribunal will generally state the tribunal’s functions in the jurisdiction, which may add to, otherwise vary, or exclude functions stated in this Act.
  1. (4)
    An enabling Act that is an Act conferring review jurisdiction on the tribunal may state the tribunal’s functions in the jurisdiction, which may add to, otherwise vary, or exclude functions stated in this Act.
  1. (5)
    An enabling Act conferring review jurisdiction on the tribunal may also confer jurisdiction on the tribunal to stay a decision made under the enabling Act while the decision is being reviewed under the enabling Act by an entity other than the tribunal.
  1. (6)
    An enabling Act conferring appeal jurisdiction on the tribunal may state the tribunal’s functions in the jurisdiction, which may add to, otherwise vary, or exclude functions stated in this Act.
  1. (7)
    An enabling Act that is an Act may also include provisions about the following matters, which may add to, otherwise vary, or exclude provisions of this Act about the matters—
  1. (a)
    requirements about applications, referrals or appeals for jurisdiction conferred by the enabling Act;

Examples—

  • the period within which an application, referral or appeal must be made
  • documents required to accompany an application, referral or appeal
  1. (b)
    the conduct of proceedings for jurisdiction conferred by the enabling Act, including practices and procedures, and the tribunal’s powers, for the proceedings;

Examples—

  • the availability or non-availability of stays of the operation of a decision the subject of a proceeding
  • persons who must be notified of a proceeding, a hearing of a proceeding or the tribunal’s decision in a proceeding
  • additional persons who are a party to a proceeding
  • persons who may be represented in a proceeding without the tribunal’s leave
  • hearings that must be held in private
  1. (c)
    the enforcement of the tribunal’s decisions in a proceeding for jurisdiction conferred by the enabling Act.
  1. (8)
    This section does not limit another provision of this Act authorising an enabling Act to provide for a particular matter.
  1. (9)
    To remove any doubt, it is declared that an enabling Act that is subordinate legislation—
  1. (a)
    may only confer jurisdiction, including jurisdiction to stay a decision, on the tribunal; and
  1. (b)
    can not add to, otherwise vary, or exclude anything provided in this Act or an enabling Act that is an Act.

7 Application of Act if modifying provision in enabling Act

  1. (1)
    This section applies if a provision of an enabling Act (the modifying provision) provides for—
  1. (a)
    the tribunal’s functions in jurisdiction conferred by the enabling Act; or
  1. (b)
    a matter mentioned in section 6(7).
  1. (2)
    The modifying provision prevails over the provisions of this Act, to the extent of any inconsistency between them.
  1. (3)
    This Act must be read, with any necessary changes, as if the modifying provision were a part of this Act.
  1. (4)
    Without limiting subsection (3)—
  1. (a)
    in a provision of this Act relating to a person starting a proceeding, a reference to the person doing something under this Act is taken to be a reference to the person doing the thing under this Act or a modifying provision; and
  1. (b)
    in a provision of this Act relating to the tribunal conducting a proceeding, a reference to the tribunal doing something under this Act is taken to be a reference to the tribunal doing the thing under this Act or a modifying provision.
  1. (5)
    This section does not prevent an enabling Act from expressly stating how this Act applies in relation to the modifying provision, including, for example, by stating that stated provisions of this Act do not apply, or apply subject to stated variations.
  1. (6)
    In this section—

enabling Act means an enabling Act that is an Act.

  1. [39]
    The argument was considered in Campaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney-General & Ors [2016] QCA 37, [30] to [50].  Applegarth J with whom Margaret McMurdo P and Henry J agreed, decided that modifying provisions did not have the effect contended for.  When dealing with time limits to make an application, it was only where the provision in the enabling Act was a modifying provision which was inconsistent with the power in section 61 that it prevailed over section 61.  Since section 61 itself anticipated that an enabling Act would provide for a time period in which proceedings should be brought, merely providing for such a time period was not automatically inconsistent with section 61.  There would be inconsistency with section 33 if for example the enabling Act required that a review application should be made in 14 days instead of 28 days in that section.  And there would be inconsistency if the enabling Act expressly excluded the operation of section 61 (as done in the previous section 472A of PAMDA).  There would also be inconsistency if there were clear words in the enabling Act requiring that an application is made within a certain time after which there is no scope to extend the time.  So section 61 will not apply if the enabling Act indicates otherwise, for example by stating that the period cannot be extended, that section 61 does not apply to empower the tribunal to extend time, or that an application must be brought within a certain time, failing which the tribunal shall not decide the application.  Where an intent to preclude an extension of time under section 61 is evident, there will be an inconsistency between the modifying provision and section 61.  And if there is such inconsistency then the enabling Act will prevail.

The correct test to ascertain the extent of the powers in section 61

  1. [40]
    From the Court of Appeal’s helpful analysis in Campaigntrack the correct test to ascertain the extent of the powers in section 61 in any particular case can easily be seen.  It is a question of statutory interpretation.  The question is, whether, having regard to the enabling Act and the QCAT Act together and as a whole, and in particular having regard to their aims and objects, and having regard to the wording of the particular time limit concerned in its legislative context, the legislative intent is that the power to extend time to start proceedings section 61(1) is not to operate.
  2. [41]
    And as said by the Court of Appeal when considering the (now repealed) provisions in section 473(5)(b) and 511(1)(a)(i) of PAMDA:-[8]

… clear words would be required to provide that the application must be made within 14 days, after which there is no scope to extend the time to make an application for an extension of time or to waive the 14 day requirement … one should not lightly infer a legislative intent to shut out deserving claimants from seeking an extension of time under s 511.  For example, a claimant might fail to apply for an extension of time within the 14 day period stated in the notice because he or she was in a coma in hospital and unable to make the application.  One can imagine other deserving circumstances in which a claimant fails to make the application within the 14 day period in the notice.  In summary, this is not a case in which the relevant provisions, either expressly or by necessary intendment, create a time limit beyond which no application for an extension of time may be made.

  1. [42]
    A previous test, such as whether a time limit to start proceedings was 'mandatory', has been discredited.  This was said in Campaigntrack to be 'unhelpful'.  As explained at [33], statutory requirements whether substantive or procedural are in a sense,​​ always 'mandatory'.  The use of the word 'must' may help to show the intention of the legislature, but in the light of Campaigntrack, it cannot be conclusive.
  2. [43]
    I would suggest also that a common test, as to whether a requirement in an enabling Act appears to be 'substantive' or 'procedural' is also unhelpful.  These terms are difficult to define and introduce an element of subjectivity.  Campaigntrack is authority for the proposition that the real test is the legislative intent of the provisions - do the provisions indicate that the tribunal's power in section 61 to extend time to start the proceedings is ousted?

Applying the test to section 32 of the NDA

  1. [44]
    It is necessary to return to Bull v Porteus [2018] QCATA 100 which decided that there was no power to extend time in the closely similar provisions of section 31.  I note that Campaigntrack was not cited in Bull.  Instead, Watkins v Queensland Building and Construction Services [2013] QCAT 535 was relied on.  That case had decided that a time limit in the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) was ‘substantive’ and not ‘procedural’ so that section 61 did not apply.  Watkins was upheld on appeal by the Court of Appeal.[9]
  2. [45]
    Watkins however, was dealing with quite different legislative provisions.  It was dealing with the now repealed section 86 of the QBCC Act which expressly provided that ‘the tribunal must not review the following decisions of the authority’ and one of the decisions listed was a direction to rectify when 28 days had elapsed since it had been served.  This is similar to the provision that has replaced it in section 86F of the QBCC Act which now describes such decisions as ‘not reviewable decisions’.  It has been held that it is clear there is no jurisdiction to extend time for this type of review.[10]
  3. [46]
    With respect therefore, I do not think that Watkins helps to resolve the issue in this appeal.
  4. [47]
    When considering the time limit in section 32, and whether the tribunal can extend it in a deserving case, it is worth pointing out that house owners with fencing disputes can apply to the tribunal under several provisions in the NDA.  Only two of them, sections 31 and 32, have a time limit provided by the NDA itself.  The others, where a time limit is appropriate, would be governed by the Limitations of Actions Act 1974 (Qld), where the usual time limit is 6 years from when the cause of action arose.  The provisions under which neighbours can apply to the tribunal in respect of fencing disputes are:-
    1. (a)
      By section 31, following a notice to contribute for prospective fencing work, if no agreement is reached, an owner may apply to the tribunal subject to the 2 months’ time limit in that section.
    2. (b)
      By section 32, following a notice to contribute for urgent fencing work already carried out, if no agreement is reached, an owner may apply to the tribunal subject to the 2 months’ time limit in that section.
    3. (c)
      By section 38, an owner who reasonably believes that an adjoining owner intends to construct or demolish a dividing fence without authorisation, may apply to the tribunal to prevent the work.
    4. (d)
      By section 27, where an owner or a person has entered land and without the consent of the owner of the land and has attached a thing to a dividing fence which unreasonably and materially alters or damages the fence, then an application can be made to the tribunal for the thing to be removed and the fence restored.  There is no time limit specified in the NDA for such an application.
    5. (e)
      By section 39, an owner may apply for an order requiring removal or rectification of a fence where an adjoining owner has constructed or demolished a dividing fence without authorisation.  There is no time limit specified in the NDA for such an application.
  5. [48]
    For sections 27 and 39 the time limits are quite relaxed.  So why are there 2 months’ time limits in sections 31 and 32?  In the case of section 31, the time limit is helpful because it reduces the risk of the quotes for the prospective fencing work getting stale and reduces the risk of further dilapidation of the fence concerned.  In the case of both sections the time limits are useful to maintain the momentum of the process required by the NDA.  In the case of section 32, the time limit is helpful because it reduces the risk of the neighbour from whom the contribution is being sought, from moving away.  It is best under both sections to get differences resolved as soon as possible.
  6. [49]
    It is notable however, that under both sections 31 and 32, the applicant could simply serve another contribution notice to start the clock ticking again, and then apply to the tribunal within the 2 months’ period.  The question is whether the legislature intended that this should be done in every case where the neighbour had missed the 2 months’ deadline.  This seems unlikely bearing in mind the tribunal is obliged to act informally and quickly.[11]
  7. [50]
    In Campaigntrack it was found that the tribunal’s jurisdiction to extend the implied time limit in PAMDA which the Court was considering was not ousted because:-
    1. (a)
      The provisions impliedly state that a claimant may make an application to extend time within a certain period, and say nothing about whether the tribunal may allow an extension of time in a deserving case.[12]
    2. (b)
      The provisions do not say that for the tribunal to have jurisdiction the claimant ‘may only’ apply within the period, or ‘must’ apply within the period;[13] they do not say that an application for an extension of time may not be sought outside the time period.[14]
    3. (c)
      The provisions did not expressly exclude the operation of section 61 of the QCAT Act (unlike for example in section 472A of PAMDA which did do so).[15]
  8. [51]
    There is nothing like this in the NDA either, when considering the wording of sections 31 or 32.
  9. [52]
    It may be said that the time limits in sections 31 and 32 would be open to abuse if the tribunal had power to extend them, and that could not be the intention of the legislature.  But this would ignore the built-in safeguards to the exercise of the discretion.  Firstly, the tribunal cannot extend time if it would prejudice the other side which could not be remedied by an appropriate order for costs or damages.[16]  And secondly, whether it should be extended will turn on the usual criteria set out in Harper Property Builders Pty Ltd v Queensland Building and Construction Commission [2018] QCATA 70, [26]:-
    1. (a)
      the length of the delay;
    2. (b)
      the adequacy of explanation for the delay;
    3. (c)
      the merits of the proceeding sought to be litigated;
    4. (d)
      prejudice to others; and
    5. (e)
      the interests of justice (sometimes expressed as ‘general considerations of fairness’).​
  10. [53]
    Therefore, even if the proper construction of the particular provisions is that the tribunal does have power to extend time to apply in a fencing dispute under section 31 or 32, these tests provide a safeguard against that being abused.

Conclusion about ground 2 of the appeal

  1. [54]
    In the circumstances my conclusion is that whereas the time limit in section 32 is a modifying provision within the meaning of section 6(7) of the QCAT Act, is it not inconsistent with the power to extend time in section 61 because such a time limit was in the contemplation of section 61 as being the type of time limit in an enabling Act which could be extended.  Hence, the time limit in section 32 does not prevail over the power to extend time in section 61.  The tribunal does have power to extend the time limit in section 32.  The Adjudicator was right in the circumstances to extend time as he did.  There is no merit in ground 2 of the appeal.

Conclusion in the appeal

  1. [55]
    Appeals in minor civil disputes can only be brought with the leave of the Appeal Tribunal.  Such leave will only be given if there is an arguable case on appeal.  Such appeals are only arguable if the decision maker is in error in law, or has made a factual finding which could not be made on the evidence and is of such importance as to require leave to be given.  This is not the case here.  Leave to appeal is refused and the appeal therefore fails.

Footnotes

[1] Transcript 1-3, lines 6 to 25.

[2] This is provided by sections 7(2)(a) and 30(1) of the NDA.

[3] Sections 3(a) and 7(3) of the NDA and the procedure for contribution notices.

[4] Section 6(2) of the QCAT Act provides that an enabling Act is (amongst other things) an Act, other than the QCAT Act, which confers original, review or appeal jurisdiction on the tribunal.

[5] Section 14(1) of the Acts Interpretation Act 1954 (Qld).

[6] Notes are also part of the Act: section 14(4) of the Acts Interpretation Act 1954 (Qld).

[7] Citing Murray CJ in Ragless v Prospect District Council [1922] SASR 299, 311.

[8] Paragraphs [43] to [45].

[9] Queensland Building and Construction Commission v Watkins [2014] QCA 172.

[10] Eco-Builder Pty Ltd v Queensland Building and Construction Commission [2018] QCAT 59​, [18].

[11] Sections 3(b) and 4(c) of the QCAT Act.

[12] Paragraph [36].

[13] Paragraph [30].

[14] Paragraph [31].

[15] Paragraphs [30] and [31].  Section 472A(3) states in respect of certain types of claim: ‘The QCAT Act, section 61 does not apply to empower the tribunal to extend the time permitted to do a thing mentioned in subsection (1)(a) or (b).’

[16] Section 61(3) of the QCAT Act.

Close

Editorial Notes

  • Published Case Name:

    Carol Pollard and Gerry Pollard v Rosanne Fitzgibbon and Phillip Fitzgibbon

  • Shortened Case Name:

    Pollard v Fitzgibbon

  • MNC:

    [2019] QCATA 42

  • Court:

    QCATA

  • Judge(s):

    Member Gordon

  • Date:

    09 Apr 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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