Ramsay v Earl[2025] QCATA 29

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   The respective parties are proprietors of adjoining residential lots in Coventry Place, Wishart, Brisbane.
2. [2]
   In or about June 2023, the respondents to the present application, Mr and Mrs Earl (‘Earl’), wished to replace the dividing fence between their property and that of the present applicant, Mrs Karen Ramsay (‘Ramsay’).
3. [3]
   It was agreed that the existing timber fence be replaced by ‘colorbond’ sheeting standing on a new concrete retaining wall in place of old timber sleepers that previously served that purpose. Apportionment of liability for the costs of removing the old fence and erection of the new were not seriously contested.^[1]

Liability for retaining wall

4. [4]
   The real bone of contention is liability for the new retaining wall. The adjudicator, relying on authorities considered below, ordered that ‘[Ramsay] must pay the entire cost of the removal and construction of the retaining wall.’^[2] The adjudicator observed:^[3]

The photographic evidence, and the submissions that have been made by both parties, can really only be interpreted as providing that the necessity for the retaining wall is to retain land on the respondent’s side of the common boundary … The responsibility of a retaining wall is that the party who has the benefit of that wall should be responsible for its maintenance.

5. [5]
   However, Ramsay declines to make any payment for the wall, regarding it as Earls’ sole responsibility.
6. [6]
   Ramsay now seeks leave^[4] to appeal that order.

Fences and retaining walls distinguished

7. [7]
   Section 35 of the Neighbourhood Dispute (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’) provides inter alia that on an application in relation to fencing work for a dividing fence QCAT may order ‘the amount that each adjoining owner is liable to pay for the fencing work’.^[5] But there is no comparable jurisdiction to order contributions to the cost of a retaining wall.^[6]
8. [8]
   A retaining wall is not part of a dividing fence within the meaning of the Act. The Act defines ‘dividing fence’ as ‘a fence on the common boundary of adjoining lands’, but the term ‘fence’ does not include a retaining wall.^[7] The responsibility for a retaining wall rests upon a party who has the benefit of the wall, and in previous cases in this tribunal it was held that sole responsibility fell upon one party.^[8] In Zacaropoulos v Davison^[9] Dr Collier approved this statement in the explanatory notes attached to similar NSW legislation: ‘Retaining walls are usually erected solely for the benefit of the owner who undertakes excavation work.’

Appeal grounds

9. [9]
   In summary, Ramsay’s proposed grounds of appeal (overlooking some repetition) are that:

   1. The adjudicator exhibited apparent bias or denied her natural justice.
   2. Her case was not adequately considered, while undue time and attention was paid to Earls’ submissions.
   3. The retaining wall was necessitated by excavations made by Earl, who benefits from its existence.
   4. The adjudicator preferred Earl’s evidence ‘without sufficient justification’.
   5. The adjudicator’s assessment of a photograph of the locus is mistaken.
   6. Ramsay has been ‘deeply affected’ by a dispute affecting ‘a long-standing friendship’.

Due Process

10. [10]
    In this jurisdiction, it is not uncommon for parties to confuse the legal meaning of natural justice and dissatisfaction with the result of the case, without sufficient particulars of alleged departures from due process. It is not enough to invoke natural justice as a mantra; convincing particulars must also be given. It is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done.^[10] It is not an appellable error to prefer one version of the facts to another,^[11] or to give less weight to one party’s case than he or she thinks it should receive. Findings of fact will not normally be disturbed if they have rational support in the evidence, even if another reasonable view is available.^[12] Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view.^[13]
11. [11]
    For example, it is quite inadequate to assert, as a broad aspersion, that a decision maker has not paid sufficient attention to one’s case, without supporting evidence. (Compare Ground (ii) above.) Again, it is insufficient to complain that an opponent was heard at undue length, ignoring or unaware of the fact that the party in question,^[14] as the one bearing the onus of proof, is likely to be examined more closely by the tribunal.
12. [12]
    With respect to the submission that Earls’ evidence was inappropriately preferred, that is the task of the primary decision maker, as judge of fact and credit

If there is evidence, or if there are available inferences which compete for the judge’s acceptance, no error of law occurs simply because the judge prefers one version of evidence to another or one set of inferences to another. This is his function. ... Even if the evidence is strongly one way the Appeal Court may not intervene simply because it reaches a different conclusion ….^[15]

Two misapprehensions

13. [13]
    Ramsay complains that one Tania McGovern was not heard on Ramsay’s behalf. A quick perusal of the transcript shows that Ramsay was represented by her daughter, not by McGovern.
14. [14]
    In her submission filed on 17 June 2024, Ramsay seeks to discredit the adjudicator’s demeanour:

[B]oth Adjudicator Eardley and Lloyd Earl did not allow Gemma Ramsay to respond to questioning [and] both continually spoke over Gemma Ramsay in a condescending tone and manner.

15. [15]
    The transcript shows nothing to justify this criticism; indeed, at the conclusion of the hearing the adjudicator complimented Gemma on her presentation of her mother’s case.^[16]
16. [16]
    Elsewhere in the same submission^[17] Ramsay alleges (purportedly by way of direct quotation) that the Adjudicator at one point patronisingly told her daughter:

You are not understanding my question, let me rephrase it in a simpler way before asking the exact same question.

17. [17]
    The official transcript records no such remark. Natural justice is due to the tribunal as well as parties or witnesses.

Time to prepare

18. [18]
    If, as Ramsay claims, she had insufficient time to review certain documents filed  by Earl, she could have sought a brief adjournment on that account. Besides, as the adjudicator recognised, late service of papers often occurs in this relatively informal forum, without seriously delaying a hearing. As a former President of QCAT observed:

It is common knowledge that [this] jurisdiction is a busy and demanding one, in which parties are expected to present their own cases, and act in their own interests. QCAT’s resources for the resolution of disputes serve, as the High Court has recently observed, the public as a whole and not merely the parties to proceedings. The QCAT statutory regime itself places obligations upon parties to take care in their dealings with Tribunal matters and to act in their own best interests.^[18]

Leave application not an appeal

19. [19]
    The interpretation of a photograph of Earl’s property was a matter of fact for the adjudicator, as were several other objections made to the findings It is essential to appreciate that an application for leave to appeal is not an occasion for ‘second guessing’ the judgment of the trial judge, or to introduce evidence or arguments that might have been led in the first place, but in fact were not. Primary findings of fact must not be disturbed, provided that they have rational support in the evidence, even if another reasonable view is available.^[19] It is not appellable error to prefer one version of the facts to another, or to give less weight to one party’s case than he or she thinks it should receive. As the tribunal has often stressed, this is not a retrial, but merely a search for legal error that may seriously have affected a result.^[20]

Sufficient reasons given

20. [20]
    As for reasons for the decision, it suffices that the tribunal found as a fact that the benefit of the retaining wall flowed to Ramsay alone, and proceeded to explain and apply appropriate authority to that situation. Hyper-critical scrutiny of minor or overloaded tribunals is disapproved by courts of appeal.^[21]

Conclusion

21. [21]
    The subject decision turns upon matters of fact and credit that are the province of the primary decision maker. I discern no appellable error of law and nothing that could be reasonably described as a ‘glaring improbability’^[22] error in fact-finding. The application for leave to appeal is dismissed.