Pai v Daubney[2023] QCATA 39

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   At material times the applicants (‘Pai’) and the respondents (‘Daubney’) were proprietors of adjacent residential allotments in Joynt Street, Hamilton, Brisbane.
2. [2]
   During redevelopment of Pai’s land Pai built a concrete retaining wall on his land and planned construction of a new dividing fence between the parties’ properties. In Pai’s view each party should bear one half of the cost of these constructions.
3. [3]
   Absent an agreement on that point, Pai, on or about 21 June 2021, gave a contribution notice^[1] to Daubney. This document proposed that the parties share expenses exceeding $40,000.^[2] It is hardly surprising that Daubney demurred.
4. [4]
   Incidentally,^[3] the tribunal has consistently expressed the view that retaining walls per se are not within the ambit of the fencing legislation.^[4]

Proceedings commenced

5. [5]
   On 21 October 2021 Jai filed an application in this tribunal^[5] seeking an order that Daubney contribute the sum of $20,526.25.

Key section

6. [6]
   Materially section 31 of the NDA provides:

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. (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.

7. [7]
   Pai gave his notice to Daubney on or about 21 June 2021.
8. [8]
   Pai made his application to QCAT on 21 October 2021 – four months after the date of service. Prima facie, the application was out of time, non-compliant with section 31, and thus invalid, as the Adjudicator held.^[6]
9. [9]
   For that reason, among others, Pai’s application was dismissed.^[7]
10. [10]
    If the tribunal’s view is correct, it is then unnecessary to discuss its other reasons for declining to make the order sought.

Should time have been extended?

11. [11]
    However, in his application for leave to appeal, Pai contends inter alia:

The Adjudicator erred in law by failing to properly construe and apply section 31 of the [NDA] and [QCAT] Act in dismissing the application based on it being out of time.^[8]

12. [12]
    In support of that submission Pai contends:

The Appellants submit that the Adjudicator erred in law in finding that section 31(6) requires strict compliance and failed to consider section 61 of the [QCAT Act].

13. [13]
    Section 61 of the QCAT Act provides:

61 Relief from procedural requirements

(1) The tribunal may, by order—

(a) extend a time limit fixed for the start of a proceeding by this Act or an enabling Act; or

(b) extend or shorten a time limit fixed by this Act, an enabling Act or the rules …

(4) The tribunal may act under subsection (1) on the application of a party … or on its own initiative.

No section 61 application on trial

14. [14]
    A difficulty for this argument is that section 61 was not mentioned at the trial. Pai did not invoke it, and the Adjudicator did not consider it. He was not asked to do so. Had he been asked, he would not have been bound to grant an extension, and a refusal to exercise the discretion positively would not have been an error of law.
15. [15]
    Section 61 does not spontaneously exert its benign influence. It confers a discretion – not an obligation – that does not operate unless it is invoked in the proceedings in question. Unless and until it is invoked and is favourably exercised, the provisions of section 31(6) inevitably operate. That is the position here.

Ex mero motu ruling

16. [16]
    The jurisdictional point was properly taken by the tribunal itself.^[9] Courts are bound to take judicial notice of the limits of their powers. Besides, it would be undesirable, and a waste of time and resources to go through the motions of reaching a void decision,^[10] which an unsuccessful party is simply free to ignore.^[11]

Procedural or substantive?

17. [17]
    Moreover, it is a moot question whether section 31 of the NDA is susceptible to a fiat purportedly issued under section 61 of the QCAT Act. In other words, is section 31 of the NDA substantive (mandatory) – in which case section 61 cannot override it?  It is treated as substantive in Bull v Porteus^[12] and in Deveze v Suosaari^[13], while a different view is taken in Pollard & Anor v Fitzgibbon & Anor.^[14] Pollard relies on Campaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney General & Ors^[15]. However, the provision applied in Campaigntrack was significantly different from section 31 of the NDA.^[16] The Campaigntrack provision related to a single, specific procedure; unlike section QCAT section 61, it did not apply to procedures in general. Furthermore, the Campaigntrack provision virtually invited applications for waiver of the specified procedure if they were made within a set time.
18. [18]
    But in any event NDA section 61 predicates an actual application by the party desiring extra time, or an explicit initiative by the tribunal.

Resolution

19. [19]
    Absent that precondition no section 61 issue arises, and the vexed substantive versus procedural question is academic. That is the position here. A section 61 afterthought cannot redeem the absence of a section 61 initiative at the trial. That would require a retrial, but an application for leave to appeal is not an occasion for a retrial, as this tribunal has had to stress on many occasions.^[17]
20. [20]
    It follows that this particular application for contribution is incompetent, as the Adjudicator correctly decided. Any future action is a matter for the applicants.
21. [21]
    No appellable error has been demonstrated, and accordingly the application for leave to appeal must be dismissed.

ORDER

The application for leave to appeal is dismissed.