Patricia Jean McDonnell v Nicola Jane Willis

[2014] QCATA 8

CITATION: Patricia Jean McDonnell v Nicola Jane Willis
 [2014] QCATA 008

PARTIES:	Patricia Jean McDonnell (Appellant)
v
Nicola Jane Willis (Respondent)

APPLICATION NUMBER: APL447-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Acting Senior Member Howard
Member Deane

DELIVERED ON: 16 January 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The application for leave to appeal is refused.

CATCHWORDS:

APPEALS – MINOR CIVIL DISPUTES - dividing fence dispute – leave to appeal required

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142

Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. This is a dispute between neighbours as to a dividing fence between their properties.  Mrs McDonnell sought orders for $622 being half the cost for fencing work comprising a 1.8m high x 13.2 m long colourbond fence from her neighbour, Dr Willis.  The learned Adjudicator ordered that a 1.8m high x 17.1 m long colourbond fence be constructed from the northern end of Mrs McDonnell’s garage with each party paying $769.50. In his reasons for decision he made it clear that the fence ought to be constructed on the boundary, as determined by the earlier survey.

2. Mrs McDonnell seeks leave to appeal and to appeal the decision.

3. Leave to appeal is required.[1]  There are well established principles as to when leave should be granted.[2] Is there a reasonably arguable case of error in the decision?  Is there a reasonable prospect that the applicant will obtain substantive relief? Is leave necessary to correct a substantial injustice to the applicant caused by some error? Is there a question of general importance upon which further argument and a decision the Appeal Tribunal would be to the public advantage?

   [1] QCAT Act 2009 s 142(3)(a)(i).

   [2]        Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219.

4. Mrs McDonnell’s application and submissions are not particularly helpful in addressing these principles. Nor are they particularly helpful in setting out the order Mrs McDonnell now seeks.

5. Having regard to the evidence before the Adjudicator set out in the transcript provided to this Appeal Tribunal it can be seen that many of the matters raised were raised at the original hearing and considered by the Adjudicator.

6. There are some other matters which were not raised.  Mrs McDonnell is effectively seeking leave to rely upon new evidence that was not before the Tribunal.  To the extent that they relate to the continuing, less than harmonious relationships, between Ms McDonnell and her son, Mr McDonnell on the one hand and Dr Willis and partner, Mr Westgarth on the other, they do not address issues relevant to whether leave should be granted.  To the extent that the material consists of measurements there is no material before this Appeal Tribunal as to why this evidence could not have been presented at the original hearing. 

7. New evidence is generally not received on appeal. It is important that litigation be brought to a conclusion. Often submissions that new evidence should be allowed are attempts to re-litigate a matter based on a hope of a different outcome. We are not satisfied that the new evidence should be received by the Appeal Tribunal.

8. We are not satisfied that there is a demonstrated error and therefore there is no basis for leave to appeal.