Hickey v Hamilton[2024] QCATA 105

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

What is this application about?

1. [1]
   In a decision made by the Tribunal below on 23 August 2023, Mr Hickey’s application for an order that Vodafone be directed to supply a copy of text messages exchanged between Mr Hickey and his neighbours, Mr and Mrs Hamilton over three years, on the topic of their shared boundary fence was refused (the decision).

2. [2]
   Mr Hickey wants to appeal the decision but requires leave to do so.^[1] The dividing fence dispute was adjourned pending a decision on Mr Hickey’s application for leave to appeal, which now follows. 

Application for leave to appeal

3. [3]
   The appeal process is not an opportunity for applicants to have their application automatically reheard or a decision reconsidered.^[2] In determining whether to grant leave to appeal, the Appeal Tribunal must be satisfied that, relevantly:

   1. there is a reasonably arguable case of error in the primary decision;^[3]
   2. there is a reasonable prospect that the appellant will obtain substantive relief;^[4] and
   3. leave is needed to correct a substantial injustice caused by the error;^[5] or
   4. there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.^[6]

4. [4]
   The Tribunal has discretion exercisable under s 63 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) to require a non-party to produce a document or another thing to the Tribunal or to a party to a proceeding.^[7] In doing so, the Tribunal must be satisfied that:

   1. The non-party has possession or control of the documents or things they are being asked to produce, 
   2. The documents to be produced are relevant to the decision to be made by the Tribunal in the dispute before it, ^[8] and
   3. Even if relevant, the documents will on balance, assist the Tribunal to hear and to determine the dispute. ^[9]  
5. [5]
   The Tribunal may refuse to allow evidence, even if relevant, if it considers there is already sufficient evidence about the matter before it.^[10]  
6. [6]
   The onus is on the party alleging relevance to prove it,^[11] although it can be gleaned from the application and material filed in the proceedings.^[12]
7. [7]
   In refusing to make the order sought, the Tribunal below noted, relevantly, that:

   1. Mr Hickey did not file a Notice to Contribute for Fencing Work with his application for a minor civil dispute – dividing fence dispute and in fact disclosed in his application that no such notice was served.^[13] Therefore, at the time the application for a notice to produce was considered, he had not established that the Tribunal had jurisdiction to consider the application.^[14]
   2. Mr and Mrs Hamilton had not, at the time of the application for the notice to produce, filed a response to the application.
   3. Without jurisdiction established, and without knowing the respondents’ views on the application, it was premature to seek evidence from Vodafone.
   4. Further, and importantly, an order to produce several years of text messages between the parties was not considered relevant to the question to be determined in the proceedings (regarding the sufficiency of the current dividing fence and any contributions to be made if a replacement fence is required), nor was it considered likely to facilitate the just and expeditious resolution of the issues in dispute.
8. [8]
   There is a strong presumption in favour of a decision involving discretionary judgment. It is not enough that the Appeal Tribunal might have decided differently, rather, an applicant must show that, in terms of House v R (1936) 55 CLR 499 and Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 that the discretion exercised by the decision maker has miscarried by acting on a wrong principle or giving weight to extraneous or irrelevant matters or failing to give weight or sufficient weight to relevant considerations or making a mistake as to the facts. The result must be so unreasonable or plainly unjust that the Appeal Tribunal may infer that there has been a failure to properly exercise the discretion.
9. [9]
   That is not the case for Mr Hickey’s application on the evidence before the Appeal Tribunal: 

   1. The Tribunal below properly considered the relevant issues before it in making its decision to refuse the application for production of documents.
   2. Mr Hickey has not established how the exchanged text messages would have assisted the Tribunal below in making its decision in the dividing fence dispute, particularly having regard to ss 31 and 32, 35 and 36 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld).
   3. Further, Mr Hickey has since stated that he does not believe the text messages can be retrieved from Vodafone^[15] such that it seems unlikely the documents sought are their possession or control.
10. [10]
    For those reasons, there is no reasonably arguable case of error in the decision.

Decision

11. [11]
    As Mr Hickey has not demonstrated a reasonably arguable case of error, and without an error there can be no substantial injustice in need of correction, leave to appeal is refused.